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Interesting 1818 Blasphemy Case:

I haven't seen it published anywhere, or cited in any articles or books on blasphemy, so I thought I'd pass it along, since it seems to be one of the few available early decisions on blasphemy. I should note that I'm passing this along solely in case people are curious about it, and in case it helps people in their research -- I'm not trying to make any statement about what the law ought to be, or even about the original meaning of the First Amendment or related state constitutional provisions.

The report is from Law Intelligence, Franklin Gazette, p. 2, Nov. 17, 1818, but it's also reprinted in much the same form in a contemporaneous newspaper article that's available here:

Mr. Bache,

The following paragraph is extracted from the Democratic Press of Saturday last --

"At a meeting of the friends of ROBERT C. MURRAY, held at the Rialto Tavern, No. 130, South Sixth Street, November 13, it was resolved that this meeting highly disaprove of the prosecution of Robert C. Murray for the expression of opinions on the subject of RELIGION, which were the opinions of Franklin and Jefferson, two of the greatest and best men, that ever lived in any age or country -- and that we now adjourn to meet again at this place, on MONDAY EVENING NEXT, at 7 o'clock, and that all enemies of Religious Persecution be invited to attend at that meeting.

JOSEPH AILES, chairman.

"John Syng, secretary."

There is in our code, an unrepealed Act of Assembly, of the year 1700, which punishes with a fine of ten pounds, for the use of the poor, or an imprisonment at hard labour for three months, whomsoever "shall willfully, premeditatedly, and despitefully, blaspheme, or speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit or Scriptures of Truth." 1 Smith's State Laws, page 6.

Under this act, Robert C. Murray was indicted at the last Mayor's Court, for Blasphemy. His counsel entered the plea of "Not Guilty" on his behalf; and the case was, in the ordinary way, submitted to a jury of his country.

The evidence for the prosecution was brief, distinct, and forcible. Two witnesses swore that they had heard the defendant, at various times and places, utter the following language -- "That Christ was a bastard -- his mother a w---- and the bible a pack of lies."

Tucker (mail):
BLASPHEMY! Ah, for the good old days...
6.1.2009 2:49pm
DJ (mail):
This is Maryland?
6.1.2009 2:56pm
DJ (mail):
Or Pennsylvania? It's not clear from the excerpt.
6.1.2009 2:58pm
Fub:
Just listening to the judge's diatribe at sentencing should have been considered cruel and unusual punishment.

The bizarre rationalization that
“The free communication of thoughts and opinions is one of the invaluable rights of man: and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”
doesn't mean what it says seems eerily familiar even today.
6.1.2009 3:08pm
AJK:

Or Pennsylvania? It's not clear from the excerpt.


There's a Philadelphia, Maryland?
6.1.2009 3:20pm
Preferred Customer:

Can it be otherwise than criminal, maliciously to destroy the happiness of another, by depriving him of his confidence in revealed religion, and rendering him a prey to doubt and despair?


This has jumped to the top of my current list of favorite quotes.
6.1.2009 3:31pm
jwhiii (mail):
Does anybody notice that the sentencing language rather closely tracks (in early American idiom, of course) the same langauge used to justify today's speech codes?
6.1.2009 3:37pm
Can't find a good name:
What currency was the fine (10l) in? British pounds? I thought the dollar was established as U.S. currency well before 1818.
6.1.2009 3:47pm
The Unbeliever:
Now I'm curious to know if he was hit with a blasphemy charge because laws on public nuisance weren't sufficient yet. If the following lines are accurate, I would expect some kind of "disturbing the peace" charge would have fit just as well:
Nor have you confined your malicious activity to the sphere of private conversation. Citizens have been insulted with your profanity and indecency, in the public streets; and, to complete your insolence, you have accosted them with scoffing on their way to public worship.
Leaving aside the question of whether one has a right to be free from others' speech expressing ridicule, I imagine a jury willing to convict on blasphemy would be just as willing to convict on public harassment charges.

Speaking of that jury, this line was interesting:
The Jury without retiring from the box, gave in a verdict of "Guilty."
IANAL, and (thankfully) have spent a very limited time in actual court rooms, so I'm curious: does this actually happen any more, or are juries required to actually retire before rendering a verdict? Is there even a procedure for asking the jury for an instant verdict, or can they proactively tell the judge "we don't need to leave, we're pretty sure we got a verdict already"?

Since juries can be publicly polled for their vote on a verdict, does that mean they don't have a right or an expectation for private conference?
6.1.2009 4:01pm
Thomas Cresap (mail):
There's a Philadelphia, Maryland?

Of course!
6.1.2009 4:17pm
M N Ralph:

Speaking of that jury, this line was interesting:

The Jury without retiring from the box, gave in a verdict of "Guilty."

IANAL, and (thankfully) have spent a very limited time in actual court rooms, so I'm curious: does this actually happen any more, or are juries required to actually retire before rendering a verdict? Is there even a procedure for asking the jury for an instant verdict, or can they proactively tell the judge "we don't need to leave, we're pretty sure we got a verdict already"?


The line about the jury not even retiring from the box jumped out at me as well. IAAL and I have never heard or even read of such a thing before this. It is certainly contrary to Texas state court practice and the admonitory instructions judges always give for jurors not to discuss the case until after closing arguments and the jury has been sent to the jury room for deliberation. Although I hesitate to speculate on the practice in the other 49 states, I would be quite surprised if there's any protocol for the jury not even leaving the box to deliberate.
6.1.2009 4:35pm
Bill Poser (mail) (www):

What currency was the fine (10l) in? British pounds? I thought the dollar was established as U.S. currency well before 1818.


The use of the dollar as the unit of US currency and the first coinage by the federal government were authorized by the Coinage Act of 1792. However, this act merely established federal coinage - it did not preempt the issuance of state and private coinage nor did it forbid the use of foreign currency. For quite some time the Spanish dollar continued to circulate in the US (hence the term "2 bits" for 25 cents - the Spanish dollar was divided into eight "reales"). British money was also used, as were various state and private coinages. Maryland issued coins denominated in shillings until 1792, so it isn't shocking that a statute or legal decision would make use of British denominations.
6.1.2009 4:42pm
keypusher64 (mail):
Fub:
Just listening to the judge's diatribe at sentencing should have been considered cruel and unusual punishment.

The bizarre rationalization that

“The free communication of thoughts and opinions is one of the invaluable rights of man: and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

doesn't mean what it says seems eerily familiar even today.


Don't overlook the last part. We don't consider blasphemy to be a real crime; but we don't think the First Amendment permits anyone to shout fire in a crowded theater, to use Holmes' dictum. Nor does it permit anyone to utter libels with "actual malice" or to advertise that Laetrile cures cancer. To this judge, and no doubt to the jury as well, the sentence was just punishment for abuse of the liberty of free speech.
6.1.2009 4:57pm
Chris MM (mail) (www):
What currency was the fine (10l) in? British pounds? I thought the dollar was established as U.S. currency well before 1818.

And of course, the article states that the statute is from 1700, long before 1792.
6.1.2009 4:57pm
Alan K. Henderson (mail) (www):
I would treat this as a slander case. Correct me if I'm wrong, but only the aggrieved parties may file such lawsuits.

If the defendant were alive today, he could probably get a National Endowment for the Arts grant to perform his antireligious rants onstage.
6.1.2009 5:34pm
CiarandDenlane (mail):
<blockquote>
There's a Philadelphia, Maryland?

Of course!

</blockquote>

In any event, however, Pennsylvania, but not Maryland, is a Commonwealth.
6.1.2009 5:55pm
James Kabala (mail):
A brief reference to this case can be found on pp. 232-233 of my recent disseration, "A Christian Nation?: Church-State Relations in the Early American Republic, 1787-1846." I can't really had anything to the account above, but I just wanted to assert my right of prior discovery so that when my dissertation comes out as a book in a few years (God willing) no one thinks I lifted it without attribution.
6.1.2009 5:55pm
Crunchy Frog:

For quite some time the Spanish dollar continued to circulate in the US (hence the term "2 bits" for 25 cents - the Spanish dollar was divided into eight "reales").

Hence the term pieces of eight.

We now return you to your regularly scheduled programming, already in progress.
6.1.2009 6:07pm
pete (mail) (www):
I like that the fine goes to charity instead of the state and think that should still be the practice since it removes the incentive to use fines for revenue.
6.1.2009 6:08pm
Zubon (www):
Were rabbis, imams, and similar folk barred from the state, or just from mentioning that they thought their religions were correct? I imagine they avoided prosecution by not making noise about it, but that whole "Christianity is completely false" thing is kind of implied by a great many religions.
6.1.2009 6:28pm
Jon Rowe (mail) (www):
James,

I'm wondering whether Leonard Levy's book on blasphemy references this case.

Also I look forward to seeing your diss. published in a book.

I alerted David Holmes to the James Willson/Bird Wilson footnote and he seems receptive to the record being corrected.

Check out my newest group blog American Creation where all we do is discuss the "Christian Nation" issue.
6.1.2009 6:50pm
whit:

but we don't think the First Amendment permits anyone to shout fire in a crowded theater, to use Holmes' dictum. Nor does it permit anyone to utter libels with "actual malice" or to advertise that Laetrile cures cancer. To this judge, and no doubt to the jury as well, the sentence was just punishment for abuse of the liberty of free speech.


people consistently misquote him (in schenck iirc).

the decision referenced it being illegal to FALSELY yell fire in a crowded theater.

that's a rather significant difference.
6.1.2009 7:06pm
wooga:
Were rabbis, imams, and similar folk barred from the state, or just from mentioning that they thought their religions were correct? I imagine they avoided prosecution by not making noise about it, but that whole "Christianity is completely false" thing is kind of implied by a great many religions.


Zubon,
I think this only means that rabbis are prohibited from making such declarations in as profane a manner as possible while chasing after people on the way to church. This case really looks like just a "harassment by way of blasphemy" situation - not a pure declaration that challenging Christianity is illegal.
6.1.2009 7:32pm
DJ (mail):
No Philadelphia, Maryland. But on my first reading I couldn't figure out whether the court was using "Mayor’s Court of the City of Philadelphia" in the first-person or not. (If "first-person" is something that can be said about a court.) Looks like it was. And I guess that was manifestly clear to everyone else. Sorry.
6.1.2009 7:33pm
ShelbyC:

The line about the jury not even retiring from the box jumped out at me as well. IAAL and I have never heard or even read of such a thing before this. It is certainly contrary to Texas state court practice and the admonitory instructions judges always give for jurors not to discuss the case until after closing arguments and the jury has been sent to the jury room for deliberation.



My impression is that juries were under alot less control by the judge in the early 1800's. They were free to consider the law as well as the facts, and I don't know if judges were allowed to order them not to discuss the case untill closing arguements, etc.
6.1.2009 7:40pm
Jon Rowe (mail) (www):
Wooga,

I think you are right that a more secular justification for blasphemy began to be offered post the American Founding. In the colonies, the reason was more don't challenge the Christian religion. After the Founding it was more, don't rile the horses.

The way I understand blasphemy laws is that the states differed in their rationale and there was disagreement (tension) among figures as to what blasphemy laws were there to protect. In Ruggles Chancellor Kent suggests the laws were there to protect the Christian religion not those of "imposters." But that was quite a contentious claim and out of line with the sentiments of Washington, J. Adams, Jefferson, Madison, Franklin and company.
6.1.2009 8:08pm
NotMyRealName:
keypusher64 writes:

We don't consider blasphemy to be a real crime; but we don't think the First Amendment permits anyone to shout fire in a crowded theater, to use Holmes' dictum. Nor does it permit anyone to utter libels with "actual malice" or to advertise that Laetrile cures cancer. To this judge, and no doubt to the jury as well, the sentence was just punishment for abuse of the liberty of free speech.


I think you may be missing some important context.

As I've written before, the "shouting fire" analogy is widely misunderstood. There's a subtle reason why, at the time of Schenck, it might be OK to prohibit falsely shouting fire in a crowded theater, causing a panic. This reason has a lot to do with historical idiosyncracies that no longer apply. At the time, theaters were deathtraps; fires were extremely serious and had caused many widely publicized mass deaths. In that atmosphere of fear and danger, a theatergoer who hears a shout of "fire!" is likely to react almost instinctively, almost without pause for thought. When shouting a word has the power to cause listeners to react without thought, then it's not so clear that the spoken word is protected speech -- in any case, it's clearly in a different category than most speech.

My experience is that most people who use the "falsely shouting fire" analogy are unaware of these subtleties and as a result the "falsely shouting fire" situation is not actually as analogous as people think.

Moreover it's worth keeping in mind that the holding in Holmes' opinion has since been overturned. The quote about "falsely shouting fire in a crowded theater" comes from Holmes' opinion in Schenck, which held that bans on speech were permissible under the First Amendment if they presented a "clear and present danger". However the "clear and present danger" test was later overturned in in Brandenburg, which substituted more criteria: it is permissible to ban speech that is both (a) directed to inciting imminent lawless action and (b) likely to have that effect. There's no reasonable argument that the blasphemous statements made by Murray would meet that test.
6.1.2009 9:10pm
whit:
not only that, but the "falsely shouting fire" thang was also the rationale used to justify prosecution of a person for WAR PROTEST.

which i find especially ironic.
6.1.2009 9:16pm
Sid the warmonger (mail) (www):
Matthias: Look, I don't think it should be a sin, just for saying "Jehovah".
Jewish Official: You're only making it worse for yourself!
Matthias: Making it worse? How can it be worse? Jehovah! Jehovah! Jehovah!
Jewish Official: I'm warning you! If you say "Jehovah" one more time (gets hit with rock) RIGHT! Who did that? Come on, who did it?
Stoners: She did! She did! (suddenly speaking as men) He! He did! He!
Jewish Official: Was it you?
Stoner: Yes.
Jewish Official: Right...
Stoner: Well you did say "Jehovah. "
[Crowd throws rocks at the stoner]
Jewish Official: STOP IT! STOP IT! STOP IT RIGHT NOW! STOP IT! All right, no one is to stone _anyone_ until I blow this whistle. Even... and I want to make this absolutely clear... even if they do say, "Jehovah."
[Crowd stones the Jewish Official to death]
6.1.2009 9:40pm
Bruce_M (mail) (www):
Seems to me to be a blatant conflict of interest to have a Christian judge in a trial where the defendant is accused of blaspheming Christianity.
6.1.2009 10:30pm
ArthurKirkland:
Imprisonment at hard labor "justified" . . . for questioning a story of the supernatural . . . but not imposed so the defendant could get with the judge's program.

There is much in America's legal history we should be proud to have overcome.
6.2.2009 12:24am
Brian Dell (www):
Statute is quite clear in this case. Limited room for judicial discretion.

Interestingly, this statute dating from 1700 would have been entirely consistent with a United Nations Human Rights Council resolution adopted 309 years later condemning "defamation of religion".
6.2.2009 1:01am
Ricardo (mail):
My impression is that juries were under alot less control by the judge in the early 1800's. They were free to consider the law as well as the facts, and I don't know if judges were allowed to order them not to discuss the case untill closing arguements, etc.

That's for sure. Notice that the defense is allowed to make the argument to the jury that the law is unconstitutional. Today, that would never be allowed in most places.
6.2.2009 1:32am
pintler:

They were free to consider the law as well as the facts


And still are, perhaps, in MD today - MD State Constitution, Article 23:

"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact..."

Is this still interpreted the way it sounds? Is it part of jury instructions? Do MD juries actually say 'Sure he had the drugs, but he is innocent because we don't like drug laws' or 'Sure, she shot him, but he had it coming', as opposed to just saying they found reasonable doubt?
6.2.2009 7:51am
martinned (mail) (www):

I'm not trying to make any statement about what the law ought to be, or even about the original meaning of the First Amendment or related state constitutional provisions.

Why not? Doesn't a case like this show that original meaning/understanding is a useless basis for interpreting the constitution in the absence of a more convenient amendment process? In most countries, the constitution is frequently amended/updated, taking into account developments in the case law that may or may not be considered desireable. As long as that is done, there is no room for a distinction between an original meaning and a living constitution approach. If my understanding is correct, this particular case would be constitutional under any original meaning reading of the first amendment, yet the vast majority of Americans would not want that to be so today. Conclusion, either find a way to update the constitution more frequently, without going the way of California, or give up on original meaning. There's no need to treat the constitution like it is holy writ handed down from heaven.
6.2.2009 9:21am
keypusher64 (mail):
NotMyRealName

Actually, my point was quite simple: the freedom of speech was not and never will be absolute.
6.2.2009 10:58am
Losantiville:
Christ was a bastard -- his mother a w---- and the bible a pack of lies.

A more interesting question is the veracity of the blasphemy.

1) Was Christ a bastard? Mary and Joseph were Jews. Mary was a virgin. Joseph was not Jesus' biological father. The nearest analog to bastardy in Judaism was mamzerim.

A mamzer (Hebrew: ממזר) in Halakha (Jewish religious law) is a person born of certain forbidden relationships between two Jews. That is, one who is born from a married woman as a product of adultery or someone born as a product of incest between certain close relatives. Unlike the colloquial usage of bastard, a child born out of wedlock or between people of two different faiths is not a mamzer. According to the Shulkhan Arukh, "if there are rumors that a married woman is having an affair we do not suspect the children of being mamzerim since the majority of her relations are still with her husband, unless she is exceptionally adulterous." The child of a married woman and a gentile man is not a mamzer.


Since God is not Jewish, Christ would not be mamzer under Jewish law.

Under traditional Western laws of bastardy, since Mary and Joseph were married at the time of Christ's birth he would be irrebutably presumed to be Josephs legitimate son. Note that this also means that Mary was not a "single mother" analogous to the oppressed of America.

2) Was Mary a whore? There has never been any suggestion that Mary exchanged sexual services for money so the speaker must have used the colloquial meaning to imply that Mary was promiscuous. One minor problem. As a virgin, she had never known man. The 381 Nicene Creed puts it thus:

Jesus Christ, the only-begotten Son of God ... who for us men, and for our salvation, came down from heaven, and was incarnate by the Holy Ghost of the Virgin Mary, and was made man;

At law, intercourse is defined as "any penetration however slight" but this is clearly physical penetration. The Holy Ghost is the non-physical part of the Trinity so Christ was conceived without intercourse and hence without sexual activity of any kind and absent promiscuity. Catholics believe Mary was, in fact, ever virgin.

3) Is the bible a pack of lies? That would be a matter of opinion. I would guess that the writers of the works that later came to be included in the bible believed them to be in part accurate renderings of historic facts and in part metaphorical renderings of the lives and beliefs of the peoples described. Generally not intentional misstatements of known facts.
6.2.2009 11:31am
Bill Poser (mail) (www):
I suspect that the claim that Mary was a whore was not intended to be factual but was, rather, a strong version, at the time, of saying that Jesus' mother wore army boots.
6.2.2009 1:39pm
James Kabala (mail):
Mr. Poser: Aspersions on Christ's parentage (usually phrased precisely in this form) were indeed probably the most common form of alleged blasphemy. I think they were often meant literally, however, ignoring Losantiville's legal niceties and insinuating the existence of an earthly father who was neither God nor Joseph.
6.2.2009 5:03pm
Clayton E. Cramer (mail) (www):

The bizarre rationalization that

“The free communication of thoughts and opinions is one of the invaluable rights of man: and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

doesn't mean what it says seems eerily familiar even today.
It means exactly what it says: you are free to make any statements that you wish, without prior restraint, but if your statements are libelous, slanderous, blasphemous, or obscene, you can be punished after the fact for it.
6.3.2009 12:27am

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