The Constitutional Principle: Separation of Church and State
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Commonwealth v Abner Kneeland

Commonwealth v Abner Kneeland, 37 Mass. (20 Pick) 206 (Sup. Ct. Mass. 1838) is cited 5 times in The Myth of Separation (Blasphemy case)

Legal analysis and writing by Lee Edwards, Esq. Additional research and commentary by
Susan Batte, Esq.

Major claims by Barton in his publications:

From The Myth of Separation, page 58-61, Barton writes:

This case also involved an attack against God and Christianity, but unlike the previous cases, these attacks had been published. Not surprisingly, the publisher claimed "freedom of the press" in his defense. The legal indictment against him was for "willfully blaspheming the holy name of God" and for a public disavowal of Christ. The indictment revealed his published statements:

"The Universalists believe in a god which I do not; but believe that their god, with all his moral attributes ... is nothing more than a chimera of their own imagination"; "Universalists believe in Christ, which I do not; but believe that the whole story concerning him is ... a fable and a fiction... "; etc.... the language was ... a willful denial of the existence of God . . . so as to bring it within the statute.

An interesting term was used in the indictment, a term unknown to contemporary courts when used in connection with God:

The defendant admitted the writing and publishing of the libel.

"Libel" is a familiar term when used concerning other persons. It means to intentionally declare things about them that are false and would publicly injure their reputation or expose them to public ridicule. Such attacks on individuals were, and still are, illegal and subject to litigation. Yet, in previous years, attacks on God and Christ fell. under the same laws constructed to protect reputations: the laws against libel.

The defendant explained to the court the reasons his conviction should be overturned. First, he claimed he did not deny a belief in God; he was a pantheist and only denied the belief in a God; he felt that everything was god. Therefore, he asserted no law had been broken. Second, he argued that the law under which he was convicted had been superseded and overturned by the Constitution's guarantee of religious freedom. Lastly, he believed the laws against blasphemy were a violation of the freedom of the press. He felt the Constitution:

Guarantees to me the strict right of propagating my sentiments, by way of argument or discussion, on religion or any other subject.

The court addressed the defendant's first argument, that he had broken no law:

The statute, on which the question arises is as follows: "That if any person shall willfully blaspheme the holy name of God, by denying, cursing, or contumaciously reproaching God, his creation, government, or final judging of the world," &c. . . .

In general, blasphemy [that is, libel against God] may be described, as consisting in speaking evil of the Deity . . . to alienate the minds of others from the love and reverence of God. It is purposely using words concerning God ... to impair and destroy the reverence, respect, and confidence due to him... . It is a wilful 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.

The court reviewed the history of blasphemy laws in America from 1646 until the then current 1782 version of the law. After summarizing the intent of each of those laws and establishing their legal validity, the Chief Justice upheld the jury's verdict finding the defendant guilty of blasphemy and libel. Having disposed of the defendant's first position, the court addressed the issue of the constitutionality of the law:

But another ground for anesting the judgment, and one apparently most relied on and urged by the defendant, is, that this statute itself is repugnant to the constitution ... and therefore wholly void. . . . [This law] was passed very soon after the adoption of the constitution, and no doubt, many members of the convention which framed the constitution, were members of the legislature which passed this law.

The court showed how that Massachusetts laws against blasphemy were compatible with similar provisions in the constitutions of other states whose constitutions also granted religious freedom, and thus were constitutionally valid laws:

In New Hampshire, the constitution of which State has a similar declaration of [religious] rights, the open denial of the being and existence of God or of the Supreme Being is prohibited by statute, and declared to be blasphemy.

In Vermont, with a similar declaration of rights, a statute was passed in 1797, by which it was enacted, that if any person shall publicly deny the being and existence of God or the Supreme Being, or shall contumaciously reproach his providence and government, he shall be deemed a disturber of the peace and tranquility of the State, and an offender against the good morals and manners of society, and shall be punishable by fine....

The State of Maine also, having adopted the same constitutional provision with that of Massachusetts, in her declaration of rights, in respect to religious freedom, immediately after the adoption of the constitution reenacted, the Massachusetts statute against blasphemy. . . .

In New York the universal toleration of all religious professions and sentiments, is secured in the most ample manner. It is declared in the constitution . . . that the free exercise and enjoyment of religious worship, without discrimination or preference, shall for ever be allowed in this State to all mankind. . . . Notwithstanding this constitutional declaration carrying the doctrine of unlimited toleration as far as the peace and safety of any community will allow, the courts have decided that blasphemy was a crime at common law and was not abrogated by the constitution [People v. Ruggles].

The court lastly addressed the "freedom of the press" issue raised by the defendant and concluded that there was much that could not be protected by "freedom of the press":

According to the argument .. . every act, however injurious or criminal, which can be committed by the use of language, may be committed . . . if such language is printed. Not only therefore would the article in question become a general license for scandal, calumny and falsehood against individuals, institutions and governments, in the form of publication ... but all incitation to treason, assassination, and all other crimes however atrocious, if conveyed in printed language, would be dispunishable.

Legal analysis and writing by Lee Edwards, Esq.

Facts: Defendant, a pantheist who published the Boston Investigator, was convicted of blasphemy after publishing descriptions of various Universalist beliefs. He himself denied the divinity of Christ, the resurrection of the dead, and miracles. The trial court sentenced him to three months in jail.

Issue: Was Defendant's blasphemy conviction barred by the Constitution of Massachusetts?

Answer: No. Conviction and sentence affirmed.

Comment: This case was decided prior to the ratification of the Fourteenth Amendment or during the period of the de facto establishment of Protestant Christianity. (See Rob Boston, Why the Religious Right is Wrong About Separation of Church and State, Prometheus Books Buffalo N.Y. (1993) pp 77-92.)

Similarly, he [Barton] is deceptive in the Kneeland case when he refers to "the Constitution". Readers will assume that the reference is to the United States Constitution, however Kneeland was decided under the Massachusetts Constitution.

Query: Does Barton really believe that pantheists who attempt to persuade others that their beliefs are correct may constitutionally be imprisoned for blasphemy?

Research and commentary by Susan Batte, Esq.

Blasphemy: I took a look at West's digests of cases, both state and federal from the beginning to 1976. The beginning was the late 1600's.

Set I

Late 1600's to 189617 cases digested
Set II1896 to 19061 new case digested
Set III1906- 19163+ new cases digested*
Set IV1916-19261 new case digested
Set V1926- 19361 new case digested
Set VI1936- 19461 new case digested
Set VII1946- 1956No new cases digested
Set VIII1966- 19765 new cases digested
*(I'm missing part of the Blasphemy section)

So we are talking about approximately 29 cases that were prosecuted for blasphemy in this country in an 300 year period of time. (There were probably that many and more in a 50 year period of time in England in the 1700's and 1800's)

1 case holds that state blasphemy statutes violate the U.S. Constitution's religion clauses. The others for the most part hold no blasphemy violation to have occurred.

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