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f English and ; and the with which
a code prepared by several eminent German jurists, the same effect is worked by the provision that such prosecutions shall be instituted only by the parents, children, or spouse of the deceased.
$ 1601. Can a person who, from insanity, or infancy, or helplessness, is incapable of resenting an injury, and who,
os Unconconsequently cannot be supposed to be provocable to a scious or
belpless breach of the peace, be protected by this mode of prosecution ? Here, again, in default of English and American thus pro
tected. adjudications, we may look to the Roman law; and the solution is found in one of those maxims of terse beauty with which that law abounds : “Pati quis iniuriam, etiamsi non sentíat potest.” In other words, the unconscious as well as the conscious sufferer the law intervenes to protect.
$ 1602. Whether a business corporation can be the subject of an indictable libel has been much doubted; but it is not
Corporaquestioned that libels on municipal corporations are in ti dictable as seditious, and, following a parallel line of prosecute
for libel. reasoning, when public credit is imperilled, and private interests assailed, by libels on a bank or other trading corporation, then the remedy by indictment is reserved. The Roman law gives for this the additional reason, that by such attacks the honor of the individual coporators is as much imperilled as would be the case were they personally picked out for calumny; and hence, on the ground that such libels are provocative of breaches of the peace, penal redress is permitted. In our own law, as stated by Sir J. F. Stephen, a libel is indictable when defaming a “body of persons definite and small enough for individual members to be recognized as such, in or by means of anything capable of being a libel.”2 Yet for libels on a person or institution to whom the law assigns no definite body or limit, a prosecution cannot be had. 3
1 Berner, Lehrbuch, $ 150.
stock companies, which have not availed : Dig. C. L., art. 267. To this he themselves of the statutes authorizing adds this note :
incorporation, cannot prosecute for liA religious society called the S. Nun- hellous attacks in which the names of nery, consisting of certain nuns and the members of such societies are not other persons, may be libelled, though specified. The society is, in the eye of no individual is specially referred to the law, a phantom, which, as it cannot R. v. Gathercole, 2 Lew. 237.
sue civilly, cannot appear as prosecu3 Hence the Prussian appellate court, tor in a criminal court. Berner, Lehrin October, 1868, held, and with good buch, $ 150. reason, that trades unions and joint
$ 1603. No indictment will lie for words, not reduced to writing,
unless (1) they are seditious, blasphemous, or indecent, Unwritten
so as to create a public scandal or likely to incite a usually tumult; or, (2) they are spoken contemptuously to or of
a magistrate when in the discharge of his official duties ;) or, (3) they constitute a challenge to fight.* § 1604. Words are not essential to the constitution of a libel. If
the author of an infamous charge could evade prosecu.
tion by putting it in pictures or hieroglyphic signs, then pictures the law in this respect could be made nugatory. When and eigns.
we recall the pictures which still remain on the walls of Pompeii, and when we remember that before the age of printing, pictures and signs were not unfrequently used to convey vividly and concisely specific thoughts, we can understand why the Roman law coupled with verbal libels, libels which were symbolical or real. “ Iniuriam fieri Labeo ait aut re aut verbis.” Symbolical or “real”
But otherwise as to
i See Barker v. Com., 19 Penn. St. on an indictment charging two defen412; State v. Barham, 79 N. C. 646; dants with publicly singing in the State v. Brewington, 84 Ibid. 783; street libellous and obscene songs, State v. Appling, 25 Mo. 315 ; see reflecting on the prosecutor's son and supra, $$ 1431, 1432.
daughter, with intention to discredit 2 Supra, $$ 1431, 1432.
him and his children, and destroy his 3 R. v. Darby, 3 Mod. 139; R. v. domestic peace. The reasons pressed Pocock, 2 Stra. 1157; Chapman, ex in arrest of judgment were, 1. That parte, 4 A. & E. 773. That such words an indictment will not lie for publishmust be spoken in the presence of the ing two distinct libels on two distinct magistrate, or in such a way, during persons. 2. That several distinct the pendency of a case before him, as defendants charged with several ofto bring him in connection with such fences, cannot be joined in the indictcase under popular censure, see R. v. ment. 3. That there was a general Weltje, 2 Camp. 142; Marlborough, verdict on the count, whereas the ex parte, 5 Q. B. 955.
latter song contained in it was not 4 2 Salk. 417 ; R. v. Langly, 6 Mod. libellous—which were severally over125; Bailey v. Dean, 5 Barb. 297; ruled by the court. No exception was State v. Wakefield, 6 Mo. Ap. 11; taken on the ground that the songs, Townshend on Slander, 3d ed. 66. not having been written, could not Infra, $$ 1607, 1615; Whart. Cr. Pl. & have been libellous. But as the songs Pr. S 203. As to statutory indictable were obscene, this, by itself, would slander, see State v. McDaniel, 84 N. sustain the indictment. Infra, $ 1606. C. 803; Haley v. State, 63 Ala. 89 ; 6 L. i. § 1. 47. 10. See as to nude McMahon v. State, 13 Tex. Ap. 220. pictures, Com, v. Dejarden, 126 Mass.
A supposed exception is R. v. Ben- 46; as to nude statues, Com. v. Hazlefield, 2 Burr. 980; Whart. Cr. Pl. & ton, supra, § 1432. Pr. § 302, where sentence was passed
libels have in later days taken the names of Pasquils, and comprehend, according to the curious classification of the North German Code, libellous pictures, wood-cuts, engravings, and plaster and other figures (Gusswerk). We have no such particularity in any of our statutes; but no doubt libels of this class are as indictable at common law as libels in writing.'
II. BLASPHEMOUS LIBELS.
§ 1605. Aside from the question already discussed, whether Christianity is part of the common law, we may regard it as settled that maliciously to revile Christianity, as a Blasphemy religious faith of general acceptance, is an indictable offence at common law. A fortiori is published blas- law.
indictable at common
'This is, in fact, declared in the de- maliciously and opened reviled and finition already given. Supra, § 1595. blasphemed against, to the annoyance “A gallows set up before a man's of believers, or the injury of the pubdoor” may be a libel. Steph. Dig. C. lic.” This view, Mr. Binney, on the L. art. 268.
part of the devisees, in an argument, Supra, $ 20.
which has assumed a judicial weight • 4 Black. Com. 60; Smith v. Spar. from its fairness as well as from its rows, 4 Bing. 84, 88; R. v. Carlile, 3 ability, did not dispute. “ ChristianB. & Ald. 161 ; R. v. Waddington, 1 ity is a part of the law of Pennsyl. B. & C. 26 ; Com. v. Kneeland, 20 Pick. vania, it is true, but what Christianity, 206; Thach. C. C. 346 ; Chapman v. and to what intent? It is Christianity Gillett, 2 Conn. 41 ; People v. Ruggles, without particular tenets ; Christianity 8 Johns. 290 ; Updegraff v. Com., 11 with liberty of conscience to all ; and S. & R. 394 ; State v. Chandler, 2 Har- to the intent that its doctrines should ring. (Del.) 553. Compare Story's not be vilified, profaned, or exposed to Miscellaneous Writ. 451; 2 Life of ridicule. It is Christianity for the deStory, 431. As to profanity as a nuic fence and protection of those who sance, see supra, § 1431.
believe, not for the persecution of those In Vidal r. Girard, 2 How. 198, the who do not." Argument, etc., in heirs-at-law endeavored to set aside Vidal v. Girard, 103. Supra, $ 20. the will, on the ground that as it pro The English Commissioners of 1879 vided for a system of education from say :which "ecclesiastics” were to be ex “Section 141 provides a punishment cluded it was void at common law, for blasphemous libels, which offence and the charity fell. " We are com we deem it inexpedient to define otherpelled to admit,” says Mr. Justice 'wise than by the use of that expresStory, in giving the opinion of the sion. As, however, we consider that court, " that although Christianity be the essence of the offence (regarded as a part of the common law of the State, a subject for criminal punishment) lies yet it is so in this qualified sense, that in the outrage which it inflicts upon its divine origin and truth are ad- the religious feelings of the community, mitted, and therefore it is not to be and not in the expression of erroneous
phemy, written or printed, so indictable. But the publication of controversies of learned men on controverted points cannot, if
opinions, we have added a proviso to refused to arrest the judgment. State the effect that no one shall be convicted v. Chandler, 2 Harring. Del. 553. The of a blasphemous libel only for ex court refused to arrest the judgment, pressing in good faith and decent lan- where the defendant was charged with guage any opinion whatever upon any uttering the same words, on another ocreligious subject. We are informed casion, with intent to villify the Christhat the law was stated by Mr. Justice tian religion and to blaspheme God, and Coleridge to this effect, in the case of was found not guilty of the intent to R. v. Pooley, tried at Bodmin, 1857. blaspheme God, but guilty of the whole We are not aware of any later authority indictment with that exception. Ibid. on the subject. This provision is taken In Massachusetts, under Stat. 1782, with some alteration from the bill." c. 8 (Rev. Stat. c. 130, § 15), it is Draft Commission, p. 21.
blasphemy to deny the existence of Blasphemy against God, it is ruled God, with an intent to impair and dein New York, and contumelious re- stroy the veneration due him, although proaches, and profane ridicule of Christ no words of malediction, reproach, or and the Holy Scriptures, are offences contumely are used ; Com. v. Kueeland, punishable at common law, whether 20 Pick. 206; and the statute is in acuttered by words or writing; and it cordance with the Constitution. Ibid. follows, therefore, that to revile the It is not necessary, in the evidence, to name of the Saviour, and wantonly and prove every assignment of blasphemy maliciously to ridicule his character, set forth in the indictment; if one is are indictable. People v. Ruggles, 8 sufficiently proved, it is enough. Ibid.; Johns. 290. To say " that the Holy Whart. Cr. Ev. § 134. Scriptures were a mere fable; that On an indictment for blasphemy for they were a contradiction, and that, the following publication : “ The Unialthough they contained a number of versalists believe in a God, which I do good things, yet they contained a great not; but believe that their God, with many lies,” has been held indictable all his moral attributes (aside from in Pennsylvania; Updegraff v. Com., nature itself), is nothing else than a chi. 11 S. & R. 394; and the same position mera of their imagination;" it was held was taken in Delaware, after an able that the intent to deny the existence and thorough examination, by J. M. of the Deity, in the sense of the statute, Clayton, C. J. In the latter case, the must be presumed to have been made jury having found the defendant guilty out. Com. v. Kneeland, 20 Pick. 206; on an indictment under the act against Thach. C. C. 346. blasphemy, charging him with having It may be said that some of the proclaimed publicly and maliciously, above cases are on statutes, and cannot with intent to vilify the Christian re-- therefore be regarded as authorities at ligion and to blaspheme God, that common law. But they are authori(here follow words grossly indecent ties to the effect that such statutes are and blasphemous), the court held the constitutional, and do not abridge freeoffence found to be blasphemy, and dom of speech. See further Com. v.
* R. v. Waddington, 1 B. & C. 26. See R. v. Gathercole, 2 Lew. 237.
couched in temperate and decent terms, be charged as blasphemy.' And the weight of authority is that blasphemy is only indictable
Hardy, 1 Ashmead, 410; State v. or infidelity, by prostrating ChristianKirby, 1 Murph. 254 ; State v. Powell, ity ; but to exclude all rivalry among 68 N. C. 259.
Christian sects, and to prevent any The Constitution of the United States national ecclesiastical establishment requires that all officers, "both of the which should give to an hierarchy the United States and of the several States, exclusive patronage of the national shall be bound, by oath of affirmation, government. It thus cut off the means to support this Constitution. But no of religious persecution (the vice and religious tests shall ever be reg ed as pest of former ages), and of the suba qualification for any office or public version of the rights of conscience in trust under the United States." matters of religion, which had been
In reference to this clause, Judge trampled upon almost from the days of Story, in his Commentaries on the the apostles to the present age.” See Constitution, thus speaks: “It was Campbell's Lives of Ch. Justices, ii. not introduced merely for the purpose 512. of satisfying the scruples of many In R. v. Foote (and Ramsay), 48 L. respectable persons, who feel an in. T. N. S. 733, it was said by Lord Colevincible repugnance to any religious ridge, C. J., in charging the jury :test or affirmation. It had a higher “ It is clear, therefore, to my mind object : to cut off, forever, every pre- that the mere denial of the truth of tence of any alliance between Church the Christian religion is not enough and State in the national government.” alone to constitute the offence of blasAfterwards comes the following: "Con- phemy. What then is enough? No gress shall make no law respecting an doubt we must not be guilty of taking establishment of religion, or prohibit- the law into our own hands, and coning the free exercise thereof."
verting it from what it really is to On this Judge Story proceeds: “Now what we think it ought to be. I must there will probably be found few per- lay down the law to you as I undersons in this or any other Christian stand it, and as I read it in books of country who would deliberately con- anthority. Now, Mr. Foote, in his very tend that it was unreasonable or unjustable address to you, spoke with someto foster and encourage the Christian thing like contempt of the person he religion generally as a matter of sound called the late Mr. Starkie.' He did policy as well as of revealed truth. not know Mr. Starkie; he did not know
“ The real object of the amendment how able and how good a man he was. was not to countenance, much less to Mr. Starkie died when I was young ; advance, Mahoinetanism, or Judaism, but I knew him, and every one who
1 R. v. Woolstan, 2 Str. 834; R. v. 161 ; R. v. Waddington, 1 B. & C. Atwood, Cro. Jac. 421 ; R. v. Taylor, 26 ; R. v. Taylor, 2 Stark. Slan. 143; Ven. 293; R. v. Curl, 2 Str. 789 ; R. v. R. v. Pooley, Bodmin Sum. Ass. 1857, Hall, 1 Ibid. 416; R. v. Sline, Dig. L. cited Steph. Cr. Law, tit. “Blas. L. 83; R. v. Annett, 2 Burn, E. L. phemy;" Moxon's Case, 2 Town. Mod. 217; R. v. Wilkes, 2 Stark. Slan. 141; St. Tr. 356; Gathercole's Case, 2 R. v. Williams, Ibid. ; R. r. Eaton, Lew. C. C. 237. See as to profanity, Ibid. 142; R. v. Carlisle, 3 B. & Ald. supra, § 1431.