12 March 2012

Blasphemy in Old New York

So, continuing the other day’s rage against the clueless theme, let’s look at another quotation from that long-ago comment posted by Sapient:
The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice … We are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those imposters [other religions] … It is also said, and truly, that the Christian religion is a part of the common law … proven by the volume of unofficial declarations to the mass of utterances that this is a Christian nation. We find everywhere a clear recognition of this same truth.
This one is easy. Most of it comes from a bizarre 1811 New York case (People v. Ruggles), while the last part is a fragment from an 1892 Supreme Court decision (Holy Trinity v. United States). Holy Trinity I will deal with on some other occasion, should the spirit ever move me, but the People v. Ruggles is my topic for this day. I remember the case from my American Religion class in college; it was regarded as a kind of outlier in American freedom-of-religion cases. While most cases of the sort tended to side with religious liberty, People v. Ruggles came down on the other side of that particular coin.

Nobody knows much about Ruggles. Even his first name is a mystery. The one thing that we do know about him is that “he did, on the 2d day of September, 1810, at Salem &c, wickedly, maliciously, and blasphemeously, utter, and with a loud voice publish, in the presence and hearing of divers good and Christian people, &c., of and concerning the Christian religion, and of and concerning Jesus Christ, the false, scandalous, malicious, wicked and blasphemous-words following, to wit, ‘Jesus Christ was a bastard, and his mother must be a whore…’.” Not, perhaps, what he would have chosen to be remembered for, but history is not always kind. And for all I know, maybe he was proud of this observation. It’s technically true, anyway—if Jesus Christ was indeed God’s son, and God and Mary weren’t married (and I’ve never seen it claimed that they were), then Jesus would indeed be a bastard. It wouldn’t follow that his mother must be a whore, if by whore you mean a sex worker, but the term was often used then (as now) more loosely.

Context would be nice here. If Ruggles were arguing on behalf of outcasts—illegitimate children and their mothers say—by noting that after all even Jesus was illegitimate and his mother had given birth out of wedlock—he might well have a point. On the other hand, if he were just trolling some group of churchgoers (2 September 1810 was a Sunday) after a Saturday-night bout of drinking or something, he was probably going way outside the bounds of civilized discourse. Whatever the circumstances, though, he clearly had a right to say it.

Or did he? He had no protection under the first amendment of the Federal Constitution in 1810 as the fourteenth amendment had yet to be proposed, let alone passed, and I can find nothing in the New York constitution of that time that guaranteed freedom of speech or of the press. It would take a legal scholar to research the state of New York law at the time, and I’m not that interested, but in any case the free speech issue didn’t apparently come up, as far as the one surviving record of the proceedings shows.

I have my doubts about the trolling scenario I suggested above simply because in that case the authorities could easily have charged him with being drunk and disorderly or making a public disturbance or something of that sort. They obviously wanted to get Ruggles for some reason—and I say this with good cause. They had to go out on a limb to do it. The authorities charged Ruggles with blasphemy, not because there was a New York law against it, but because blasphemy was a crime under English common law, which New York had inherited. Trial was “held on the 11th June 1811, in Washington County, before Mr. Justice Spencer, and the judges of the Common Pleas, when the defendant was tried and found guilty, and was sentenced by the court to be imprisoned for three months, and to pay a fine of $500.”

I’ve heard it suggested that this was a mild sentence and hardly worth the trouble of appealing, but it seems pretty steep to me. I don’t know what $500 would be in 2012 dollars, but I would think it would be at least $5000, and possibly a great deal more. I suppose three months is still three months; I don’t know whether they did time off for good behavior and the like. In any case Ruggles seems to have objected to it, or maybe to being found guilty of a law that wasn’t actually on the books, and he did appeal it. His lawyer argued that Christianity was not part of the common law in New York state. That old saw applied in England, sure, but that was because England had an established church. New York did not. The New York constitution in fact guaranteed to its citizens “the free exercise and enjoyment of religious profession and worship, without discrimination or preference” so long as it was not “so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” His lawyer argued that “The constitution allows a free toleration to all religions and all kinds of worship. The exception as to licentiousness, refers to conduct, not opinions. Judaism and Mahometanism may be preached here, without any legal animadversion. For aught that appears, the prisoner may have been a Jew, a Mahometan, or a Socinian; and if so, he had a right, by the constitution, to declare his opinions.”

You'd think that would be self-evident, but the People’s representative begged to differ. He argued that “blasphemy, or the contumelious reproaches of our Saviour, were punishable by the common law of England … not on account of there being an established church, but [as] a principle coeval with the English law [that] had stood unshaken amidst all the revolutions and changes in Church and State.” (Thomas Jefferson would have disagreed with him on that, by the way.) “While the constitution of the State has saved the rights of conscience, and allowed a free and fair discussion of all points of controversy among religious sects, it has left the principal engrafted on the body of our common law, that Christianity is part of the laws of the State, untouched and unimpaired.”

The judge in this case was James Kent, later to author the four volume Commentaries on American Law. A Federalist and a professor of law at Columbia College, he mingled with the elite of his time. He was a great reader; among English writers he admired Henry Fielding, and among the French, Voltaire. He was a member of the Presbyterian church. “It is certain, however,” a biographer wrote of him, “that he entertained the fashionable doubts concerning orthodox religion; and in the literary club to which he belonged, he aired them. The playwright and painter, William Dunlap, recorded in his diary: ‘Kent remarked that men of information were now nearly as free from vulgar superstition or the Christian religion as they were in ye time of Cicero from pagan superstition—all, says he, except the literary men among the clergy.’”

Governor John Jay—one of the writers of The Federalist Papers—appointed him to the New York Supreme Court in 1798. In 1804 he became Chief Justice. He held this position when People v. Ruggles came before him. Now you might think, given his admiration for Voltaire and his “fashionable doubts” that he might have some sympathy for Ruggles’ right to his religious opinions. You would be wrong. Kent distinguished clearly between opinions held in private by “men of information” and opinions expressed by some commoner in public “in a wanton manner … with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion.” “[D]isputes between learned men upon particular controverted points” are one thing; “contumelious reproaches and profane ridicule of Christ or the Holy Scriptures” by the unlearned are something else. “Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful,” he proclaimed. “No government among any of the polished nations of antiquity, and none of the institutions of modern Europe, (a single and monitory case excepted), ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under the sanction of their tribunals, the general religion of the community to be openly insulted and defamed.”

As far as the notion that the New York constitution’s guarantee of “the free exercise and enjoyment of religious profession and worship, without discrimination or preference” is concerned, James Kent snidely dismisses it as words without meaning. Only “the general religion of the community” need be protected from “malicious and blasphemous contempt”. The State was not “bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of 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 upon Christianity, and not upon the doctrines or worship of those imposters.” His intention to override the constitution’s guarantee of religious liberty is manifest. Not a word of this distinction is actually in the document in question; Kent pulls this notion straight from his ass in as fine an exhibition of judicial activism as has ever been seen on the bench. His justification comes not from any legal document, but from an appeal to consequences: as oaths are administered by kissing the gospels, “we are bound to conclude, that wicked and malicious words, writings and actions which go to vilify those gospels, continue, as at common law, to be an offense against the public peace and safety. They are inconsistent with the reverence due to the administration of an oath, and among their other evil consequences, they tend to lessen, in the public mind, its religious sanction.” Kent concluded by affirming the judgment against Ruggles.

Even his generally sympathetic biographer notes that “This opinion was not in keeping with the spirit of the times.” A less sympathetic writer (such as myself) might refer to it as utter sophistry, judicial overreach, absolute balderdash, and an attempt to wrap the state in the cloak of religious liberty while standing proudly naked and unabashed for religious establishment. The tortuous logic that gets him there is irrelevant; only the result matters. His purpose was to legislate from the bench, and in that he succeeded; some ten years later we read of one Jared W. Bell being charged with blasphemy for saying in the heat of a political argument that “God Almighty was a damn’d fool” and that “Jesus Christ was a damn’d fool”. People v. Ruggles was the precedent. (For the record, Bell was acquitted.)

Now today this case has been promoted by certain pseudo-historians as evidence of how the first amendment to the Federal Constitution was interpreted in the early nineteenth century. This is bogus. The case nowhere makes mention of the Federal Constitution at all; only the New York constitution is referred to. (See here for details.) Again, this is not surprising; at this time the Bill of Rights was not binding on the states. But this is actually doubly absurd—the document in question, the New York Constitution of 1777, has long since ceased to be in effect, so even if Kent’s extremely dubious reasoning were accepted, it would no longer be relevant to any current legal situation. But a drowning man will clutch at any stray bit of flotsam, no matter how flimsy, and the same, no doubt, is true of a drowning ideology. Requiescat in pace. Or maybe caveat emptor. You decide.

Notes:

For the text of The People v. Ruggles, see here.

“It is certain, however…” from John Theodore Horton, James Kent: A Study in Conservatism, 1763-1847 (New York, 1939), p. 116.

“This opinion was not in keeping…” from John Theodore Horton, James Kent: A Study in Conservatism, 1763-1847 (New York, 1939), p. 191.

“God Almighty was a damn’d fool…” from The New-York City-Hall Recorder, June 1821 (Vol. VI No. 5) p. 38.

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