2

discourage morality. "I suppose," says Deady, J.,' "that it is both proper and constitutional for congress so to legislate as to encourage virtue and to discourage immorality. Congress in exercising its powers to establish a uniform rule of naturalization, has always discriminated in favor of morality, by providing that on the hearing of the application for citizenship, the applicant must prove that for five years prior to such application he has behaved as a man of good moral character." "

3

And the learned judge might have added that the same spirit is indicated by congress, in the statutes which enact, that any person who, within the jurisdiction of the United States," sells, or lends, or gives away, or in any manner exhibits, or offers to sell, or to lend, or to give away, or in any manner to exhibit, or otherwise publishes or offers to publish in any manner, or has in his possession for any such purpose, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, material, or any cast, instrument, or other article of an immoral nature, or any drug or medicine. or who causes to be written or printed any card, circular, book, pamphlet, advertisement, or notice of any kind, stating when, where, how, or of whom, or by what means' .. such articles may be purchased, or who "manufactures, draws, or prints, or in anywise makes any of such articles, shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars, nor more than two thousand dollars, &c., and further by

imposing a fine and imprisonment upon the aiding or abetting by any of its officers of the use of the general post office for circulating any obscene or indecent publications, representations, or articles of indecent or immoral use or tendency; and prohibiting by the like penalties the importation and deposit in the mail of such and similar matter.

3

1

2

And, again, in every court of justice in the land oaths are administered upon the holy scriptures; either by kissing, or laying the hand upon the gospels or upon some other portion (as in the case of Hebrews). Are we not, then, at liberty to conclude that words, writings, and actions, which would tend to undermine the authority and vilify the sanctity of those pages, would attack the regard for the sacredness of an oath, without which no legal formality is complete, and so strike at the very root of our jurisprudence? Such acts, words, and writings it seems to us, are, and must be, inconsistent with public peace, order, and safety.

or

In so far, then, as Christianity in its popular sense, as contradistinguished from barbarism heathenism, in so far and in such sense. as the United States is reckoned among Christian rather than among the heathen nations of the globe-we submit that Christianity is "parcel of our common law."

"Christianity, as it has been asserted, is now in a modified sense the religion of this state" (New York), said Duer, J. "It is so, as a part of that common law

1

1 Revision of 1873-74, § 1785; 3 March, 1873, ch. 258, § 4,

* Id., § 3893.

4

Andrew v. N. Y. Bible, &c., Society, 4 Sandf. 156; and see People v. Ruggles, 8 Johns. 295.

which our ancestors introduced, and we have retained the maxim that Christianity is part and parcel of the common law, has been frequently repeated by judges and text writers, but few have chosen to examine its truth or attempt to explain its meaning. We have, however, the high authority of Lord Mansfield and of his successor,' for stating as its true and only sense, that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, that blasphemy is an indictible offense at common law. The truth of the maxim, in this very partial and limited sense, may be admitted. But if we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning and untrue. If Christianity is a municipal law in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil law who refuses to embrace its doctrines and follow its precepts; and if it must be conceded that in this sense the maxim is untrue, it ceases to be intelligible. Since a law without a sanction is an absurdity to logic and a nullity in fact."

In concluding our examination of whether and to what extent "Christianity is parcel of the common law of the United States," we cannot do better than adopt and make our own the words of Chancellor Kent in the case we have been considering, believing that what he finds in this case and in the contemplation of the constitution of the state of New York, will be found to be within the spirit of the unwritten law of the nation at large.

The free, equal, and undisturbed enjoyment of

'Lord Campbell. Judge Duer here refers to Campbell's Lives of Chief Justices, vol. 2, p. 513.

religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right.

We are not to be restrained from animadversion upon offenses against public decency, merely because there may be barbarous nations whose sense of shame would not be affected by what we should consider the most audacious outrages upon decorum. It is sufficient that the common-law checks upon words and actions dangerous to the public welfare apply to our case, and are suited to the condition of this and every other people whose manners are refined, and whose morals have been elevated and inspired with a more enlarged benevolence by means of the Christian religion.'

31. The policy of the law is not to forcibly prevent one from owning property not innocent in its nature, but to refuse to encourage, by its protection, the circulation of that property. The law will not break open a man's private house and forcibly capture and destroy an obscene picture which he may happen to own; but if he keep a collection of obscene pictures for the purposes of trade, from which he sells to persons of depraved tastes, he is violating the laws of the United States, and the law will break up his

1 The doctrine, however, has not commanded the full assent of many learned minds. It was disputed by Jefferson (letter to Cartwright, 9 Am. Jurist; Life and Letters of Joseph. Story, vol. i., pp. 430–434; vol. ii., pp. 8, 462-464), and by Webster and Sergeant (see their arguments in the Girard Will Case). See, generally, as to the doctrine, Lindenmuller v. The People, 33 Barb. 548; Bedford Charity, 2 Swans. 527; Da Costa v. Paz, 2 Swans. 420 n.; Att'y-Gen'l v. Pearson, 3. Mer. 399; Andrew v. N. Y. Bible & Prayer Book Soc., 4. Sandf. 157.

business, seize his collection, and proceed to punish him by fine and imprisonment. There is a provision in the United States postal laws which forbids the circulation of such wares through the mails, and, besides making the property liable to confiscation, renders the party circulating the injurious matter liable to indictment.

So, again, while the law will not break open a man's doors and seize an obscene manuscript, known to be in his possession, it will not encourage him to print and circulate the contents of that manuscript. Neither, perhaps, will the law regard as innocent a picture not harmful in itself which its owner pretends to have been produced by a spiritual or supernatural process. In 1869, one William H. Mumler, in the city of New York, publicly advertised to the effect that he would take photographs which should not only be life-like representations of the sitter, but should contain in shadow the ghostly form of some departed friend or relative of the sitter, as it alleged that friend or relative was really beside him, only unseen to the carnal eye. The gist of the fraud here was, evidently, not the taking of the picture, or the production of the chemical or mechanical effect of a shadow upon the camera; nor perhaps the assertion that an actual spiritual presence accompanied the sitter (for that there are or are not spiritual presences about us continually, is a matter of fact concerning which men cannot reason from any data known to the law, and hence it cannot hear the opinion of experts upon the subject, nor form any conclusions of its own), but, it is submitted, the pretense that the operator and his camera were different from other operators and cameras, inasmuch as they had a connection with the spirit world. It was for obtaining