Obrázky stránek
PDF
ePub

FRANKFURTER, J., concurring.

343 U.S.

planatory statements its action on any specific motion picture, which we are advised is itself not made public. Of the fifty-odd reported appeals to the Board of Regents from denials of licenses by the Division, only three concern the category "sacrilegious." 27 In these cases, as in others under the Act, the Board's reported opinion confines itself to a bare finding that the film was or was not "sacrilegious," without so much as a description of the allegedly offensive matter, or even of the film as a whole to enlighten the inquirer. Well-equipped law libraries are not niggardly in their reflection of "the sense and experience of men," but we must search elsewhere for any which gives to "sacrilege" its meaning.

Sacrilege, 28 as a restricted ecclesiastical concept, has a long history. Naturally enough, religions have sought to protect their priests and anointed symbols from physical injury.29 But history demonstrates that the term is hopelessly vague when it goes beyond such ecclesiastical definiteness and is used at large as the basis for punishing deviation from doctrine.

Etymologically "sacrilege" is limited to church-robbing: sacer, sacred, and legere, to steal or pick out. But we are

27 In the Matter of "The Puritan," 60 N. Y. St. Dept. 163 (1939); In the Matter of "Polygamy," 60 N. Y. St. Dept. 217 (1939); In the Matter of "Monja y Casada-Virgen y Martir” (“Nun and MarriedVirgin and Martyr"), 52 N. Y. St. Dept. 488 (1935).

28 Since almost without exception "sacrilegious" is defined in terms of "sacrilege," our discussion will be directed to the latter term. See Bailey, Universal Etymological English Dictionary (London, 1730), "Sacrilegious"-"of, pertaining to, or guilty of Sacrilege"; Funk & Wagnalls' New Standard Dictionary (1937), "Sacrilegious"-"Having committed or being ready to commit sacrilege. Of the nature of sacrilege; as, sacrilegious deeds."

29 For general discussions of "sacrilege," see Encyclopaedia of Religion and Ethics (Hastings ed., 1921), "Sacrilege" and "Tabu"; Rev. Thomas Slater, A Manual of Moral Theology (1908), 226–230; The Catholic Encyclopedia (1912), "Sacrilege"; and Encyclopaedia Britannica, "Sacrilege."

495

1 32

FRANKFURTER, J., concurring.

.

9 31

told that "already in Cicero's time it had grown to include in popular speech any insult or injury to [sacred things]." 30 "In primitive religions [sacrilege is] inclusive of almost every serious offence even in fields now regarded as merely social or political . . . The concept of "tabu" in primitive society is thus close to that of "sacrilege." And in "the Theodosian Code the various crimes which are accounted sacrilege include-apostasy, heresy, schism, Judaism, paganism, attempts against the immunity of churches and clergy or privileges of church courts, the desecration of sacraments, etc., and even Sunday. Along with these crimes against religion went treason to the emperor, offences against the laws, especially counterfeiting, defraudation in taxes, seizure of confiscated property, evil conduct of imperial officers, etc." 33 During the Middle Ages the Church considerably delimited the application of the term. St. Thomas Aquinas classified the objects of "sacrilege" as persons, places, and thing." The injuries which would constitute

30 Encyclopaedia Britannica (1951), "Sacrilege."

31 Ibid.

32 See Encyclopaedia of Religion and Ethics (Hastings ed., 1921), "Tabu."

33 Encyclopaedia Britannica (1951), "Sacrilege."

34 St. Thomas Aquinas, Summa Theologica, part II-II, question 99. The modern Codex Juris Canonici does not give any definition of "sacrilege," but merely says it "shall be punished by the Ordinary in proportion to the gravity of the fault, without prejudice to the penalties established by law. . . ." See Bouscaren and Ellis, Canon Law (1946), 857. 2 Woywod, A Practical Commentary on the Code of Canon Law (1929), par. 2178, 477-478, thus defines sacrilege: "Sacrilege consists in the unworthy use or treatment of sacred things and sacred persons. Certain things are of their nature sacred (e. g., the Sacraments); others become so by blessing or consecration legitimately bestowed on things or places by authority of the Church. Persons are rendered sacred by ordination or consecration or by other forms of dedication to the divine service by authority of the Church (e. g., by first tonsure, by religious profession)."

343 U.S.

FRANKFURTER, J., concurring.

"sacrilege" received specific and detailed illustration.35 This teaching of Aquinas is, I believe, still substantially the basis of the official Catholic doctrine of sacrilege. Thus, for the Roman Catholic Church, the term came to have a fairly definite meaning, but one, in general, limited to protecting things physical against injurious acts.36 Apostasy, heresy, and blasphemy coexisted as religious crimes alongside sacrilege; they were peculiarly in the realm of religious dogma and doctrine, as "sacrilege" was not. It is true that Spelman, writing "The History and Fate of Sacrilege" in 1632, included in "sacrilege" acts whereby "the very Deity is invaded, profaned, or robbed of its glory In this high sin are blasphemers,

35 After his method of raising objections and then refuting them, St. Thomas Aquinas defends including within the proscription of "sacrilege," anyone "who disagree[s] about the sovereign's decision, and doubt[s] whether the person chosen by the sovereign be worthy of honor" and "any man [who] shall allow the Jews to hold public offices." Summa Theologica, part II-II, question 99, art. 1.

36 Rev. Thomas Slater, S. J., A Manual of Moral Theology (1908), c. VI, classifies and illustrates the modern theological view of "sacrilege":

Sacrilege against sacred persons: to use physical violence against a member of the clergy; to violate "the privilege of immunity of the clergy from civil jurisdiction, as far as this is still in force"; to violate a vow of chastity.

Sacrilege against sacred places: to violate the immunity of churches and other sacred places "as far as this is still in force"; to commit a crime such as homicide, suicide, bloody attack there; to break by sexual act a vow of chastity there; to bury an infidel, heretic, or excommunicate in churches or cemeteries canonically established; or to put the sacred place to a profane use, as a secular courtroom, public market, banquet hall, stable, etc.

Sacrilege against sacred things: to treat with irreverence, contempt, or obscenity the sacraments (particularly the Eucharist), Holy Scriptures, relics, sacred images, etc., to steal sacred things, or profane things from sacred places; to commit simony; or to steal, confiscate, or damage wilfully ecclesiastical property. See also, The Catholic Encyclopedia, "Sacrilege."

495

FRANKFURTER, J., concurring.

sorcerers, witches, and enchanters." 37 But his main theme was the "spoil of church lands done by Henry VIII" and the misfortunes that subsequently befell the families of the recipients of former ecclesiastical property as divine punishment.

To the extent that English law took jurisdiction to punish "sacrilege," the term meant the stealing from a church, or otherwise doing damage to church property.38 This special protection against "sacrilege," that is, property damage, was granted only to the Established Church. Since the repeal less than a century ago of the English law punishing "sacrilege" against the property of the Established Church, religious property has received little special protection. The property of all sects has had substantially the same protection as is accorded non-religious property." At no time up to the present has English law known "sacrilege" to be used in any wider sense than the physical injury to church property. It is true that, at times in the past, English law has

37 Sir Henry Spelman, The History and Fate of Sacrilege (2d ed., 1853), 121-122. Two priests of the Anglican Church prepared a long prefatory essay to bring Spelman's data up to the date of publication of the 1853 edition. Their essay shows their understanding also of "sacrilege" in the limited sense. Id., at 1-120.

382 Russell, Crime (10th ed., 1950), 975-976; Stephen, A Digest of the Criminal Law (9th ed., 1950), 348-349. See 23 Hen. VIII, c. 1, § III; 1 Edw. VI, c. 12, § X; 1 Mary, c. 3, §§ IV-VI.

397 & 8 Geo. IV, c. 29, § X, which the marginal note summarized as "Sacrilege, when capital," read: "if any Person shall break and enter any Church or Chapel, and steal therein any Chattel . . . [he] shall suffer Death as a Felon." This statute was interpreted to apply only to buildings of the established church. Rex v. Nixon, 7 Car. & P. 442 (1836).

40 7 & 8 Geo. IV, c. 29, § X, was repealed by 24 & 25 Vict., c. 95. The Larceny Act and the Malicious Injuries to Property Act, both of 1861, treated established church property substantially the same as all other property. 24 & 25 Vict., c. 96, § 50; c. 97, §§ 1, 11, 39, superseded by Larceny Act, 1916, 6 & 7 Geo. V, c. 50, § 24.

FRANKFURTER, J., concurring.

343 U.S.

taken jurisdiction to punish departures from accepted dogma or religious practice or the expression of particular religious opinions, but never have these "offenses" been denominated "sacrilege." Apostasy, heresy, offenses against the Established Church, blasphemy, profanation of the Lord's Day, etc., were distinct criminal offenses, characterized by Blackstone as "offences against God and religion." These invidious reflections upon religious susceptibilities were not covered under sacrilege as they might be under the Court of Appeals' opinion. Anyone doubting the dangerous uncertainty of the New York definition, which makes "sacrilege" overlap these other "offenses against religion," need only read Blackstone's account of the broad and varying content given each of these offenses.

A student of English lexicography would despair of finding the meaning attributed to "sacrilege" by the New York court.42 Most dictionaries define the concept in the limited sense of the physical abuse of physical objects. The definitions given for "sacrilege" by two dictionaries published in 1742 and 1782 are typical. Bailey's defined it as "the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses." 43 Barclay's said it is "the crime of taking any thing dedicated to divine worship, or profaning any thing sacred," where "to profane" is defined "to apply any thing sacred to common uses. To be irreverent to sacred persons or things." " The

41 Blackstone, bk. IV, c. 4, 41-64.

42 Compare the definitions of "sacrilege" and "blasphemy" in the dictionaries, starting with Cockeram's 1651 edition, which are collected in the Appendix, post, p. 533.

43 Bailey, An Universal Etymological English Dictionary (London, 1742), "Sacrilege."

44 Barclay, A Complete and Universal English Dictionary (London, 1782), "Sacrilege."

« PředchozíPokračovat »