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rights of the individual are invaded, the State is justified and expected to exercise the same control and supervision as it would in the case of any other incorporation. The legal corporations may be established simply upon the basis of a community of property, without introducing any religious qualification as a member, and in that case there is no opportunity whatsoever for State interference in the religious affairs of the organization. But this is not usually the case. Membership in the corporation assumes ordinarily a more or less religious aspect, and depends upon the performance of certain religious conditions. The civil rights of such a member may, therefore, be materially affected by the decisions of the ecclesiastical authorities, and to that extent and for the protection of such civil rights are these decisions on religious matters subject to review. The religious status cannot be determined in any event by a civil court, except as it bears upon and interferes with the temporal or civil rights of the individual. And even then the courts are not permitted to review and determine the essential accuracy of the decision. The court must confine its investigation to ascertaining, whether the proper religious authorities had had cognizance of the case, and had complied with their organic law in the procedure and how far the decision affects the civil rights under the by-laws and charter of the corporation."

erty, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to org:inize voluntary religious associations, to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general associations, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.” Watson v. Jones. 13 Wall. 679. See, also, Sohier v. Trinity Church, 109 Mass. 1; Lawyer v. Cipperly, 7 Paige, 281; Robertson v. Bullions, 11 N. Y. 243; Bellport v. Tooker, 21 N. Y. 267 (29 Barb. 256); O'Hara v. Stack, 90 Pa. St. 477; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Mon. 253; Lucas v. Case, 9 Bush, 297; Ferraria v. Vasconcellos, 31 Ill. 25; Calkins v. Chaney, 92 Ill. 463; German Congregation v. Pressler, 17 La. Ann. 127.

1 Watson v. Jones, 13 Wall. 679; Smith 0. Nelson, 18 Vt. 511; Hale o. Everett, 53 N. H. 9; Ferraria 0. Vasconcellos, 31 Ill. 25; Watson o. Avery, 2 Bush, 332; Happy v. Morton, 93 III. 398.

2 Waite v. Merrill, 4 Me. 102 (16 Am. Dec. 238); Scribner o. Rapp, 5 Watts. 311 (30 Am. Dec. 327).

§ 73. Religious criticism and blasphemy distinguish

“When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them.” Harmon v. Dreher, 2 Speer's Eq. 87.

“The entire separation of church and State is not the least of the evi. dences of the wisdom and forethought of those who made our nation's constitution. It was more than a happy thought, it was an inspiration. But although the State has renounced authority to control the internal management of any church, and refuses to prescribe any form of church government, it is nevertheless true that the law recognizes the existence of churches, and protects and assures their right to exist, and to possess and enjoy their powers and privileges. Of course, wherever rights of property are invaded, the law must interpose equally in those instances where the dispute is as to church property as in those where it is not, and it also takes note of, but does not itself enforce, the discipline of the church, and the maintenance of church order and internal regulation." State v. Hebrew Congregation, 30 La. Ann. 205 (33 Am. Rep. 217), See, also, Watson v. Jones, 13 Wall. 679; Grosvenor v. United Society, 118 Mass. 78; Dieffendorf v. Ref. Col. Church, 20 Johns. 12; Baptist Church v. Wetherell, 3 Paige, 301 (24 Am. Dec. 223); People v. German Church, 53 N. Y. 103; Hendirckson o. Decon, 1 N. Y. Eq. 577; Den v. Bolton, 12 N. J. 206; McGinnis v. Watson, 41 Pa. St. 9; Wilson v. Johns Island Church, 2 Rich Eq. 192; Lucas v. Case, 9 Bush, 297; Chase v. Chaney, 58 Ill. 508; State v. Farris, 45 Mo. 183. See Fitzgerald v. Robinson, 112 Mass. 371, in which it was held that an excommunication would not be permitted to affect property and other civil rights.

ed.—The recognition of Christianity by the State is not, and need not be, confined to the provision for Christian devotional exercises in the various governmental departments and State institutions, as has been explained and claimed in a preceding section. The fostering and encouragement of a worshipful attitude of mind, the development and gratification of the religious instinct, should be of great concern to the State. While morality is distinguishable from religion, the most important principles of morality receive their highest sanction and their greatest efficacy, as a civilizing force, in becoming the requirements of religion. A high morality is inconsistent with a state of chronic irreligiousness. Anything, therefore, that is calculated to diminish the people's religious inclinations is detrimental to the public welfare, and may therefore be prohibited. Public contumely and ridicule of a prevalent religion not only offend against the sensibilities of the believers, but likewise threaten the public peace and order by diminishing the power of moral precepts. Inasmuch, therefore, as Christianity is essentially the religion of this country, any defamation of its founder or of its institutions, as well as all malicious irreverence towards Deity, must and can be prohibited. These acts or offenses are generally comprehended under the name of blasphemy.

Mr. Justice Story, in the Girard will case, said that,

although Christianity be a part of the common law of the State, yet it is only so in the qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed, against, to the annoyance of believers or the injury of the public.The “divine origin and truth” of the Christian religion are not admitted by the common law of this country. The only thing that the law can admit, in respect to


1 See ante, $ 71.

Vidal v. Girard's Eyrs., 2 How. 127.


Christianity, is its potent influence in carrying on the development of civilization, and more especially in compelling the recognition and observance of moral obligations. If the laws against blasphemy rested upon the admission by the law of the “divine origin and truth” of the Christian religion, they would fall under the constitutional prohibitions, which withdraw religion proper from all legal control. Blasphemy is punishable, because, as already stated, it works an annoyance to the believer and an injury to the public. While religion proper is by the constitutional limitations taken out of the field of legislation, they were “never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. * To construe it. as breaking down the common-law barriers against licentious, wanton and impious attacks upon Christianity itself, would be an erroneous construction of its (their) meaning.”i But it is only as a moral power that any religion can receive legal recognition. “ The common law adapted itself to the

“ religion of the country just so far as was necessary for the peace and safety of civil institutions; but it took cognizance of offenses against God only when, by their inevitable effects they became offenses against man and his temporal

The essential element of blasphemy is malicious impiety. “ 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 of 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




1 People v. Ruggles 8, Johns. 289 (5 Am. Dec. 335). 3 State v. Chandler, 2 Harr. 553.


calumny' usually carries the same idea when applied to an individual. It is a willful 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

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such.” 1

The laws against blasphemy, at least in respect to the more special details, have reference solely to Christianity. If their authority rested on the religious character of the offense, the equality of all religion before the law would require that these laws should embrace blasphemy, against whatever religion it may be directed. And while that would be, under our constitutional provisions, both permissible and commendable, since the laws are designed to prevent widespread irreligiousness and disturbance of the public order, there would be no illegal discrimination, if the provisions of the law should in the main be confined to blasphemy against the Christian religion. " Nor are we bound, by any expressions in the constitution, as some have strongly supposed, either not to punish at all, or to punish indiscriminately, the like attacks upon the religion of Mahomet or the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted in Christianity.”?

In order that an utterance or writing may be considered a legal blasphemy, it must be accompanied by malice and a willful purpose to offend the sensibilities of Christians. The malice or evil purpose is the gravamen of the wrong. The very same words, at least the same thoughts, may under other circumstances, and with a different purpose, be lawful, and the free expression of them may be

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1 Shaw, ch. J., in Commonwealth v. Kneeland, 20 Pick. 206. See also, People v. Ruggles, 8 Johns. 289 (5 Am. Dec. 335); Updegraph o. Com., 11 S. & R. 394; State v. Chandler, 2 Harr. 553; Andrew v. Bible Society, 4 Sandf. 156.

9 Kent Ch. J. in People v. Ruggles, 8 Johns 289 (5 Am. Dec. 225).

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