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16 Blasphemy and Libel On October 17 , when the report of the legislative committee was under consideration , Erastus Root moved to add an amendment that would prohibit the judiciary from declaring “any particular religion” to be the law of the land and from excluding witnesses on account of religion. The next day he withdrew the latter clause, introducing it separately at a later time but without success. The f ormer clause was clearly aimed at Chancellor Kent, who in a much disputed blasphemy case, People vs. Ruggles (1811)had returned a conviction under the rule of English common law that Christianity is “part and parcel of the laws of the land.” Kent defended his opinion against Root’s attack, though he supposed the amendment “perfectly harmless” and actually voted with the majority on its passage in committee of the whole. But the judges, Senator King, and others did not think it harmless. Chief Justice Spencer, who moved to strike the amendment when it came before the convention, held that the words “particular religion” would place Judaism, Mohammedanism, and other faiths on an equalit y with Christianity and thus prohibit punishment of blasphemy. Kent now supported his friends, but he confused the issue by saying that blasphemy was punishable only as an offence against good morals, which was certainly not the doctrine of People vs. Ruggles. Spencer’s motion prevailed. Fortunately, because the character of American institutions would not support Kent’s rule, trials for blasphemy became exceedingly rare or nonexistent in New York and the other states. Another minor but significant issue touching the judiciary concerned the law of libel, which of course had a direct b earing on f reedom of the press. The committee on personal liberties proposed a constitutional guarantee that in cases of libel the truth might be admitted in evidence if published f rom good motives and for justifiable ends, but it left the determination of motive to the discretion Blasphemy and Libel 209 of the court. Nathan Sanford moved an amendment t o require decision b y the jury. Root supported the amendment. Kent objected, though in the opinion of several delegates the amendment only gave constitutional standing to the existing statute. In fact, Jacob Sutherland implied that the Chancellor had actually set his own discretion above the law, which was further reason for writing the guarantee into the constitution. It passed, 97to 8. . .. Gen. Root moved to add to the section as just passed, or as a distinct section, the following: “The judiciary shall not declare any particular religion, to be the law of the land; nor exclude any witness on account of his religious faith.” The supreme court, as Mr. Root contended, had brought into this state the common law of England, in defiance of what he (Mr . R.) considered to be the constitution of the state . Indictments had been sustained f or blasphemy—particularly in the county of Herkimer, and in the count y of Washington, as contained in Johnson ’s Reports. In the latter c ase it had been declared that Chr istianity was a par t of the law of the land—and this was borrowed from the common law of England. The common law of that country was established during the prevalence of the Roman Catholic religion. It was then that they issued w rits de heretico comburendo1 —and this was the law that had been intr oduced into this state. If this was correct , punishment for blasphemy should now be infl icted on such as would not acknowledge the supremacy of the mother chur ch, and on those who should ridicule the eating of wafers, or the doctrine of transubstantiation. With respect to the part of the amendment relative to the exclusion of witnesses, he would observe—that when brought forward they were to be interrogated and catechised as to their ar ticles of faith. If it was not held to be correct, they were excluded.This was calculated to produce falsehood and hypocrisy. Indeed if suff ered to prevail, hypocrisy and lies w ould become the chief qualifications for a witness. And yet in a city, large enough in its population for a state, you have a Jew for a sheriff. As the law now is, he is guilty of blasphemy e very time he enters the sy nagogue. Suppose a From Reports, pp. 462–64, 57 4–76, 488–93. 1.Concerning the burning of heretics [Ed.]. [18.220.160...

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