Jan. 23, 1825. We boast of entire liberty of conscience. How far we are from it. CIVIL LAWS AGAINST BLASPHEMY. WRITTEN BY JOHN ADAMS TO THOMAS JEFFERSON.1 QUINCY, January 23, 1825. MY DEAR SIR: We think ourselves possessed, or at least we boast that we are so, of liberty of conscience on all subjects, and of the right of free inquiry and private judgment in all cases, and yet how far are we from these exalted privileges in fact. There exists, I believe, throughout the whole Christian world, a law which makes it blasphemy to deny, or to doubt, the divine inspiration of all the books of the Old and New Testaments, from Genesis to Punishment Revelations. In most countries of Europe it is punished by fire at the stake, or the rack, or the wheel. In England itself, it is punished by boring through Punishment the tongue with a red hot poker. In America it is not much better; even in our Massachusetts, which, in Europe. in America. Adams's statement verified. An act of Congress. Law against blasphemy. Boring through the tongue. 1. Works of Thomas Jefferson," volume vii, pages 396, 397. 2 The truth of Adams's statement is proved by the following law, which, legally, is in force in the very capital of our nation to-day, although, of course, it is a dead letter. It was a Maryland law enacted in 1723, and, with the rest of the laws of Maryland, was in 1801 adopted as a law in the District of Columbia by the following act of Congress : "SECTION 92. The laws of the State of Maryland not inconsistent with this title, as the same existed on the twenty-seventh day of Febru ary, 1801, except as since modified or repealed by Congress or by au thority thereof, or until so modified or repealed, continue in force within the District." "Revised Statutes, District of Columbia," page 9. The first section of the act, entitled, "An act to punish blasphemers, swearers, drunkards, and Sabbath-breakers," etc., reads as follows: That if any person shall hereafter, within this province, wittingly, maliciously, and advisedly, by writing or speaking, blaspheme, or curse God, or deny our Saviour Jesus Christ to be the Son of God, or shall deny the Holy Trinity, the Father, Son, and Holy Ghost, or the Godhead of any of the three persons, or the unity of the Godhead, or shall utter any profane words concerning the Holy Trinity, or any of the persons thereof, and shall be thereof convict by verdict, or confession, shall, for the first offense, be bored through the tongue and The laws in Massachusetts. Free inquiry proscribed. Subject dear to Adams. I believe, upon the whole, is as temperate and moderate in religious zeal as most of the States, a law was made in the latter end of the last century repealing the cruel punishments of the former laws, but substituting fine and imprisonment upon all those blasphemies upon any book of the Old Testament or the New. Now, what free inquiry, when a writer must surely encounter the risk of fine or imprisonment for adducing any arguments for investigation into the divine authority of those books? Who would run the risk of translating Volney's Recherches Nouvelles? Who would run the risk of translating Dapin's? But I cannot enlarge upon this subject, though I have it much at heart. I think such laws a great embarrassment, great obstructions to the improvement of the human mind. Books that cannot bear examination, certainly ought not to be established as divine inspiration by pènal laws. It is true, few persons appear desirous to put such laws into execution, and it is also true that some few persons are hardy enough to venture to depart from them; but as long as they continue in force as laws, the human mind must make an awkward and clumsy progress into its investigations. I wish they were repealed. The substance and essence of Christianity, as I understand it, is eternal and unchangeable, and will bear examination forever; but it has been mixed with extraneous ingredients, which, I think, will not amination forbear examination, and they ought to be separated. and that for the second offense, fined twenty pounds sterling; As incompatible as they are with religious equality, several of the States have similar laws, with the penalty somewhat modified, and now and then attempts are made to enforce them. They retard progress of Their repeal humanity. desired. Christianity will bear ex ever. Burning on forehead. Death for third offense A D 1458. Statement of the circum- ing the litiga- Most remarkable instance of judicial legislation in history. Thorough. ness of Jefferson's study. CHRISTIANITY AND THE COMMON LAW. WHETHER CHRISTIANITY IS A PART OF THE COM- In quare impedit, in Common Bench, [Year Book] 34th year Henry VI, folio 38, the defendant, bishop of Lincoln, pleads that the church of the plaintiff became void by the death of the incumbent; that the plaintiff and I. S., each pretending a right, presented two several clerks; that the church being thus rendered litigious, he was not obliged, by the ecclesiastical law, to admit either, until an inquisition de 1 Appendix to "Reports of Cases Determined in the General Court of Virginia, from 1730 to 1740 and from 1768 to 1772, by Thomas Jefferson" (Charlottesville, F. Carr & Co., 1829), page 137 et seq. In the preface to his reports (page vi), Jefferson says: "I have added, also, a disquisition of my own on the most remarkable instance of judicial legislation that has ever occurred in English jurisprudence, or, perhaps, in any other. It is that of the adoption in mass of the whole code of another nation, and its incorporation into the legitimate system, by usurpation of the judges alone, without a particle of legislative will having ever been called on, or exercised towards its introduction or confirmation." And in a letter to Edward Everett, dated at Monticello, October 15, 1824, he wrote as follows: "I do not remember the occasion which led me to take up this subject, while a practitioner of the law. But I know I went into it with all the research which a very copious law library enabled me to indulge; and I fear not for the accuracy of any of my quotations. The doctrine might be disproved by many other and different topics of reasoning; but having satisfied myself of the origin of the forgery, and found how, like a rolling snow-ball, it had gathered volume, I leave its further pursuit to those who need further proof, and perhaps I have already gone further than the feeble doubt you expressed might require." "Works of Thomas Jefferson," volume vii, page 383. Jefferson was an eminent common-law scholar and was conversant with the Mirrour of Justices, Henri de Bracton, Fleta and Britton, Glanvil, Saint Germain, Fortescue Aland, and all the older writings on the common law, and therefore was naturally a competent critic upon the subject in hand. Without reading these older writers one can hardly jure patronatus, in the ecclesiastical court; that, by the same law, this inquisition was to be at the suit of either claimant, and was not ex officio to be instituted by the bishop, and at his proper costs; that get a good understanding of what the real common-law idea is. The modern conception of it as the customs of England is far from the truth, as a quotation or two from the older writings will readily show. Coke, for instance, the greatest authority on the law that ever adorned the English bench, is reported in Brownlow (printed in London, 1652) as follows: "Coke, Chief Justice, agreed, and he said that Fortescue and Littleton, and all others agreed, that the common law consists of three parts: "But the common law corrects, allows, and disallows both statute law and custom; for if there be repugnancy in statute, or unreasonableness in custom, the common law disallows or rejects it, as it appears by Doctor Bonham's case, and 8 Coke, 27 Henry VI, annuity." Volume 2, page 198. See also Colledge of Physitian's case, page 265, which declares a statute void on the ground that it was "made against law and right." The same division of the law of England is made in the preface to Hughes's edition (1768) of "The Mirrour of Justices: Written in the Old French long before the Conquest." Says the writer : "The temporal laws of this kingdom may be divided into three parts: "Firstly, The general or common law. "Secondly, The customary law. "Thirdly, Statute or Parliament laws." This is the old view of the common law, and custom was regarded as law simply in the sense that if there had been a uniform custom in regard to a given subject from time immemorial, that was good evidence that the given custom accorded with the law. Custom is not the law but it is very good evidence of what the law is; so customary law is that part of the law proved by custom. So with statute law: when a legislative body has passed upon a given question of law and declared that it is law, that is evidence par excellence of what the law is. But neither statute nor custom prove the law absolutely. They are simply the best of evidence. But if even the best of evidence is unreasonable or repugnant, it must be set aside. Therefore, Coke, following the common-law idea, says: "The common law corrects, allows, and disallows both statute law and custom." Value of old writings. Authority of common law. Custom must conform to justice. circumstances. Statement of neither party had desired such an inquisition; that six months passed; whereon it belonged to him of right to present as on a lapse, which he had done. The plaintiff demurred. The expres son upon which is based the claim that A question was, How far the ecclesiastical law was to be respected in this matter by the common law court. And Prisot, chapter 5, in the course of his argument uses this expression: "A tiels leis que ils de seint eglise ont en ancien scripture, covient à nous "Christianity à donner credence; car ceo common ley sur quel touts manners leis sont fondés: et auxy, sin, nous sumus obligés de conustre lour ley de seint eglise et semblablement ils sont obligés de conustre nostre ley; et, sin, si poit apperer or à nous que l'evesque ad fait come un ordinary fera en tiel cas, adong nous devons ceo adjuger bon, ou auterment nemy," etc.' is part of the common law." Translation. Expression paraphrased. "To such laws as those of holy church have in ancient writing, it is proper for us to give credence, for it is common law on which all manners of laws are founded; and also, if not, we are obliged to know the law of their holy church [ecclesiastical law]; and, likewise, they are obliged to know our law; and, if not, if it appears to us that the bishop has done as an ordinary would do in such case, then we should adjudge it good, otherwise not," etc. Jefferson says: "The reports in the Year Books were taken very short. The opinions of the judges were written down sententiously, as notes or memoranda, and not with all the development which they probably used in delivering them. Prisot's opinion, to be fully expressed, should be thus paraphrased: To such laws as those of holy church have recorded and preserved in their ancient books and writings, it is proper for us to give credence; for so is, or so says the common law, or law of the land, on which all manner of other laws rest for their authority, or are founded; that is to say, the common law, or the law of the land common to us all, and established by the authority of us all, is that from which is derived the authority of all other special and subordinate branches of law, such as the canon law, law merchant, law maritime, law of gavelkind, borough-English, corporation laws, local customs and usages, to all of which the common law requires its judges to permit authority in the special or local cases belonging to them. The evidence of these laws is preserved in their ancient treatises, books, and writings, in like manner as our own common law itself is known, the text of its original enactments having been long lost, and its |