Fred Phelps, 175 Years Ago:

OK, this wasn't funeral picketing as such, and it was a bit less outrageous than Phelps' picket signs. But only a bit.

George Beals, age 19, died of a lingering and painful disease, possibly tuberculosis ("consumption"). His father arranged an obituary in a Universalist newspaper, which said,

He was a pattern for the imitation of the rising generation.--He was one who always detested the use of ardent spirits;--he never allowed himself to use vulgar or profane language, and avoided the company of those who did;--he was modest and genteel in his deportment, and gained the love and affection of all who had the pleasure of knowing him.--He never professed any particular tenet of religion, but listened to all.--His sickness was long and tedious. He had many friends who felt anxious for his future fate; and often inquired whether he was prepared for a future state.--He invariably answered them, I know of no action of my life, which causes me the least anxiety;--and God is above the Devil, what have I to fear?--He died as he lived, sensible to the last, full of faith and hope.

Two weeks later, Origen Bacheler, the owner and editor of the Anti Universalist newspaper, decided to publish a rebuttal to an obituary (I italicize the allegedly libelous portion):


The Trumpet of the 10th inst. contains an obituary notice [describing the above notice] .... Now we are authorized to say, that this person, instead of being an example to others, and being free from the use of profanity, was actually habituated to it; that he was known to believe in Universalism; that, on his death bed, instead of saying that God was stronger than the Devil, he renounced Universalism, and gave evidence of a gracious change.

By the foregoing, the public will learn to receive the obituaries of the Trumpet with many grains of allowance....

Lovely: A young man dies, and a stranger's religious fanaticism (apparently shared by the young man's younger brother, who was the source for the rebuttal) leads the stranger to try to publicly correct the young man's obituary by accusing him of sinful conduct. As the prosecutor in the criminal libel prosecution of Bacheler put it, in flowery but sound language, "It was rarest of all that the most vile, the most malignant, the most daring, would strip off those little flowers which the hand of affection had strewed over the grave of their loved one, and scatter in their stead the rank weeds of opprobrium and disgrace."

The test for a criminal libel at the time was that a defamatory statement was libelous unless it was true, and was made with good motives and for justifiable ends. To my surprise, the jury rendered a not guilty verdict, though "requesting [the judge] to state to Mr. Bacheler that although they had brought him in not guilty, yet they did not approve the course which he had taken ..., but had acquitted him on the ground, that they did not think he had any particular malice against the deceased."

Source: Trial of the Commonwealth, Versus Origen Bacheler, for a Libel on the Character of George B. Beals, Deceased, at the Municipal Court, Boston (Boston, John H. Belcher 1829).

Benjamin Davis (mail):
A jury nullification that seems quite sensible. The kind of case that really should not even be in court, but someone brings the case and the other has to defend. Is this related to a second lawyer having now arrived in the town (an old lawyer's joke)?
7.11.2008 11:50am
It's my understanding that one cannot commit libel against the dead. Is that only civil libel? Could someone be charged with criminal libel in a similar case today?
7.11.2008 11:59am
Jon Rowe (mail) (www):
Thanks for this. For those interested, Origen Bacheler played an important role in the debate over whether George Washington was a traditional Christian, or something else, some kind of Deist, theist or unitarian.

Long story short: Bacheler and his nemesis freethinker Robert Dale Owen engaged in a series of public debates over the religion of America's Founding Fathers which unearthed key testimony from some folks who knew Washington, about his unorthodox behavior at church: systematically avoiding communion. I blogged about that here.

Bacheler, a right wing Christian of his day argued for the orthodox Christianity of America's Founders against the freethinker Owen (similar to the Christian v. Deist debates of today). Along the way, they ran into another Fred Phelps like character named James Renwick Willson (whom historians often mistakenly identify as Bird Wilson, son of FF James Wilson) who "smelt a rat" at the US Founding, terming all of the US Presidents from Washington to Jackson were "infidels" and not more than "unitarians."

I blogged about that here.

Ultimately I have concluded that the freethinker Owen and the uber-Christian Rev. Willson were right: The key American Founders were not orthodox Christians like Bacheler and Willson. For one, George Washington praised the very theological Universalism that Bacheler condemned.
7.11.2008 1:51pm
Here's hoping this post didn't germinate from the debate over Sen. Helms' "legacy."
7.11.2008 1:54pm
Good luck finding so lucid and thoughtful a jury these days.
7.11.2008 2:26pm
Wouldn't a court faced with such a situation today, i.e. an admitted jury nullification in a civil case, simply vacate the acquital and order a new trial?
7.11.2008 2:49pm
Mere coincidence that that Universalist newspaper was The Trumpet and the magazine published by Reverend Jeremiah Wright's church, a United Church of Christ congregation, is also The Trumpet? An allusion to the Biblical Gideon's trumpet?

I do think Fred Phelps' harassment of mourning families is the more reprehensible than Bacheler's, but perhaps Bacheler was exceptionally obnoxious by the standards of his times, when there was no television to amplify his voice and help him make a splash nationwide.
7.11.2008 2:52pm
Jon Rowe (mail) (www):
I think Bacheler was a typical conservative Christian of his day. Now James Renwick Willson...he was obnoxious for his day. When he gave his sermon terming all of the Presidents from Washington to Jackson "infidels" and not more than "unitarians" in 1832, he was burned in Effigy.

What's common knowledge among the secular historical academy today (well they just call the early Founders "Deists") got a good Christian minister burned in effigy. Willson, from what I have researched was right. However, that he was burned if effigy illustrates something about the social environment that few today appreciate (a culture of "religious correctness"). Likewise those deist and unitarian Founding Fathers tended to keep their "infidelity" to themselves.
7.11.2008 3:38pm
John (mail):
I'm with jagbn on this; I think the most impressive part of the story is the deftness and thoughtfulness of the jury, and the literacy of their findings. These were people who probably had not completed what today we think of as high school. Yet they were mature, nuanced in their thinking and careful in their words. Something has happened to the jury system (and more).
7.11.2008 6:12pm
Actually, in the early 1800s jury service was quite limited. It was certainly entirely white men, probably all property owners. Given those two facts, they likely had a decent education for their time.
7.11.2008 7:18pm
There's no libel here. Profane is being used in its original sense. There is the holy religion, and then there are the other, profane religions. Profanity here refers to statements that are considered inncorrect religious doctrine -- nothing to do with four-letter words. (The mistake is a little bit like thinking an omnibus bill refers to transportation. It's the older meaning, not the newer one, that's being used.) A claim that a person professed something other than the true religion obviously can't be libelous.

It would be a bit like a Jew saying a non-Jew is a "non-chosen person," or a Christian saying someone is "damned" (as in not saved).

One may agree or disagree with these statements on theological grounds, one may think there is a time, place, and manner to talk about them, but a statement of simple religious doctrine can never possibly be libelous. For a court to entertain the question of whether or not it is false -- to decide what is "really" holy and what is "really" profane -- would violate the First Amendment.
7.11.2008 7:42pm
Eugene Volokh (www):
ReaderY: From reading the account of the trial, it was pretty clear that "profane" was used to roughly mean using God's name in vain, e.g., "God damn" or "Jesus Christ!"
7.11.2008 9:15pm
Stephen C. Carlson (www):
I am loving the fact that the anti-Universalist Origen Bacheler just so happens to share his Christian name with a 3rd century theologian accused of univeralism.
7.12.2008 1:31am

ReaderY: From reading the account of the trial, it was pretty clear that "profane" was used to roughly mean using God's name in vain, e.g., "God damn" or "Jesus Christ!"

No problem. Obviously a person who associates the Divine appellation with false, vain doctrines is using God's name in vain.
7.13.2008 5:26am
EV wrote: Lovely: A young man dies, and a stranger's religious fanaticism (apparently shared by the young man's younger brother, who was the source for the rebuttal) leads the stranger to try to publicly correct the young man's obituary by accusing him of sinful conduct.

Although I'm still hung over, it seems the ultimate tone of this was positive: he was saying he was involved in a "profane" doctrine, but at his death renounced the doctrine and embraced "a gracious change." Strikes me more as a salvo in the ongoing war between the surviving son and his dad, along with whatever other family members are aligned with Universalism, than a simple slam on the dead brother.
7.13.2008 3:14pm