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Blasphemy in pre-Criminal Code Canada: two sketches.

I. INTRODUCTION

II. BLASPHEMY IN NEW FRANCE
 A. CONTEXT
 B. CASES
 C. ANALYSIS

III. BLASPHEMY IN EARLY NINETEENTH-CENTURY RURAL
 ONTARIO
 A. CONTEXT
 B. CASES
 C. ANALYSIS

IV. CONCLUSION


I. INTRODUCTION

Few people realize that Canada has a law against blasphemy, and even fewer realize that this prohibition extends as far back as the origin of the country. (2) The text of Canada's Criminal Code's ("the Criminal Code") blasphemous libel provision, which was enacted in 1892, and the five reported cases arising under it, are the most relevant materials for understanding the legal concept of blasphemy as it exists in Canada today. (3) However, these materials reveal little about how irreligious speech was treated by the criminal justice system prior to the advent of the Criminal Code. (4) This article attempts to fill in this gap by analyzing two particular sites of blasphemy prosecutions in Pre-Criminal Code Canada: the New France era in Quebec and early 1800s rural Ontario. (5)

It must be noted that reconstructing the law of blasphemy in Canada as it existed several generations ago is a difficult task. The available materials come exclusively from archival holdings, which means it may be impossible to conclusively determine whether those materials are truly representative of the law at the time or simply an artifact of archival indexing practices. (6) Those documents which can be found are often incomplete, containing little more than a single affidavit or indictment, (7) or nearly indecipherable from faded handwriting. (8) Secondary sources covering the religious, political, and social history of these time periods make little or no mention of blasphemy. (9) Finally, historians trying their hand at law, and lawyers trying their hand at history, should be quick to acknowledge their limitations. Any conclusions drawn here will necessarily be tentative and preliminary.

Disclaimers aside, such a study is certainly worth the effort. These early cases have something to tell us about what "blasphemy" meant to early European settlers in what would become Canada: what words were considered blasphemous, what social and economic classes were likely to have been viewed as responsible for blasphemy, and how severely blasphemy would be punished if discovered. (10) Even if the framers of the relevant provision of the Criminal Code borrowed from elsewhere, (11) a history of the legal prohibition of blasphemy in Canada would be incomplete without at least an attempt to integrate the earliest examples that can be found. (12)

II. BLASPHEMY IN NEW FRANCE

A. CONTEXT

The colony of New France existed as a state-governed legal entity for just under a century--from 1663, when King Louis XIV imposed military rule dissolving the commercial entity that had established the colony, (13) until the English Conquest of 1760. (14) The military nature of New France is important to remember when studying blasphemy prosecutions during this era, as many of the cases involve soldiers and sailors as defendants. (15) According to W.J. Eccles, "[t]he whole fabric of [New France] Canadian society was imbued with the military ethos" (16) and "[t]he colony ... was organized on military lines" with compulsory military service for all able-bodied men. (17) Colonial government was bifurcated, with a Governor in charge of military and diplomatic matters, and an Intendant in charge of civil administration and the justice system. (18) The civilian population was not subject to military law, but instead was subject to the "Custom of Paris," civil law as then practiced in and around France's largest municipality. (19) A "Sovereign Council" of notables in the colony, including the Governor, the Intendant, the Bishop, and others acted as the court of appeal for both civil and criminal matters. (20)

Criminal law in the colony followed the Criminal Ordinance enacted in France in 1670. (21) Under this inquisitorial system, witnesses gave testimony in camera before being confronted by the defendant, (22) defendants were presumed guilty until proven innocent, (23) defense attorneys were prohibited, (24) and judges could authorize torture to force a confession in capital cases. (25) Judges enjoyed wide discretion in punishment, with options ranging from simple fines and shaming, to branding, banishment, and hanging. (26) In contrast to modern methods of punishment, prison was seen only as a secure place to hold the defendant until trial and not as a separate sanction. (27)

The Church in New France was largely an appendage of the state, and everything from the nomination of bishops, to questions of funding were determined by the King or his personal representative in New France, the Governor. (28) Not surprisingly, the Church and the Crown "worked together to ensure that Canada remained a well-regulated Catholic community" and "[b]ehaviour that the Church denounced as a sin was often--as in the cases of swearing ('blasphemy') and meat eating during Lent--punished by the courts as a crime." (29) Eccles states that determining the degree and manner of religious belief in the general population is "virtually impossible" because it simply wasn't a normal topic of conversation, but "[t]hat the mass of the Canadians were well versed in the tenets of their faith there can be no doubt." (30) Apparently, the eighteenth century brought with it continual complaints about a decline in moral standards and disrespectful conduct during religious services. (31) Protestants were rare in the colony and faced severe restrictions on their religious liberty--for example, a 1676 regulation allowed "persons of the Pretended Reformed Religion" to reside in the colony only for "legitimate cause" and with the understanding they "will enjoy no public exercise of religion and will live as Catholics without giving offence." (32)

B. CASES

The earliest recorded prosecution for blasphemy from the land that would eventually become Canada dates from 1665, just two years after Royal government was established in New France. (33) Jacques Bigeon, a middle-aged man, who had lived in the colony for just under a decade, was accused of having "swore and blasphemed the Holy Name of God." (34) The matter seems to have been considered a serious one, as eleven people were deposed or testified during the proceeding and the case was heard by the colony's Intendant. (35)

In contrast to the norm in England during much of the nineteenth century, blasphemy prosecutions in New France did not stem from sincere theological disputes or frank disbelief. (36) Blasphemy usually arose when individual passions were heated to the point that even the strong legal and social disapprobation of irreligious talk simply failed to contain such strong emotions. (37)

[FIGURE 1 OMITTED]

In this manner, blasphemy in New France looks to be more analogous to profanity than it does heresy. (38) It functioned as an expression of anger, not an expression of religious disagreement. (39) The blasphemous speech that arose in the cases of Pierre Perot, a carpenter accused of uttering threats and blasphemous words during an apparent domestic disturbance (40) and of a man named Champigny, accused of having blasphemed during a dispute with a sailor's wife, (41) are good examples.

The 1679 prosecution of Charles Catignon follows this pattern. (42) While staying at an inn in Quebec City, Catignon (a 30 year-old quarter-master for the colonial government) began gambling one morning and (presumably due to bad luck) started to swear and then to "utter insults, blasphemies, and execrable oaths against the holy name and honour of God[.]" (43) After Catignon was arrested and interrogated, (44) ten people gave evidence during the resulting proceedings. (45) Catignon was convicted, but faced only a monetary fine: 150 livres to various religious charities and another 50 livres to the Crown. (46) His appeal to the Sovereign Council was denied two years later. (47) Apart from anger, blasphemy prosecutions could also arise from unappreciated attempts at humour, as in the case of a young merchant prosecuted for "laughing and blaspheming the holy name of God with impunity." (48)

The punishment for blasphemy was usually monetary fines, (49) but could also include a form of public shaming described by Andre Cellard:
 The offender was first secured in the public square by means of a
 carcan (an iron collar attached to a pole) and with a sign hung
 around his neck describing his crime. He remained exposed to jeers
 and public condemnation for a period ranging from a half-hour to
 four consecutive hours, for one, two or three days. (50)


Shaming could include an element of forced public confession, as in the case of Louis Morent, a soldier convicted of blasphemy and sentenced to:
 removed from prison and driven by a bailiff before the door of the
 Church of Notre-Dame ... with a sign affixed front and back, upon
 which he will write 'Swearer and Blasphemer of the holy name of
 God' ... [whereupon] bare-headed and kneeling, he must say and
 declare in a loud voice that maliciously and ill-advisedly, he has
 sworn and blasphemed the holy name of God several times, that he
 thus repents and asks forgiveness of God, the King, and the Law.
 (51)


Morent was also fined 10 livres and threatened with corporal punishment if he repeated the offense. (52)

Charges of blasphemy occasionally accompanied far more serious allegations. (53) In 1678, a sailor was charged with both murder and blasphemy for his involvement in an altercation aboard ship that resulted in a fellow sailor being knocked overboard and drowning. (54) The accused, Jean Briere, was convicted on both counts and sentenced to the gallows. (55) Briere's final fate is unknown, but he attempted to appeal the death sentence and "for having blasphemed the name of God, to ask pardon of God and King, before the main door of the parish church." (56)

Decades later, a group of soldiers set fire to several buildings in Trois-Rivieres to cover up their burglaries--once caught, in addition to arson and theft, at least one of them was charged with blasphemy, apparently for having said "this damned country should be burned and reduced to cinders, along with all those who are inside it." (57) The group was sentenced to be "whipped and flayed [while] naked" and then either exiled from the colony or sentenced to hard labour. (58)

In cases like these, it's not clear what role the blasphemy charge played in the proceedings--to our modern eyes it may seem odd, like simultaneously charging a serial killer with first-degree murder and jaywalking.

C. ANALYSIS

Figure 2 provides a summary of known blasphemy prosecutions in the New France. Looking at these fifteen cases, a few patterns become clear.

First, blasphemy during this time period was punished relatively lightly compared to other crimes. For each of the cases in which blasphemy was the sole charge, the sentence amounted to only fines or the carcan. Of course, chaining a prisoner's neck to an iron pole in the public square is not a slap on the wrist by today's standards, but it was a comparatively lenient punishment at the time. (59) Cellard, for example, lists blasphemy as one of the lesser crimes punished by the carcan, along with "selling alcohol to Aboriginal people ... not fasting, or pilfering." (60) In cases involving both blasphemy and more serious crimes like arson and murder, punishments like whipping and the gallows were imposed.

The total number of blasphemy prosecutions during New France's existence as a Royal colony seems relatively small; there was an average of one prosecution every six years, with only a handful occurring after the turn of the century. (61) As discussed above, it is possible that archival indexing practices may have skewed this result. (62) Still, unless there is a great quantity of hidden cases, it seems safe to infer that blasphemy prosecutions were relatively rare. In his survey of crime in New France, Andre Lachance counted 14 blasphemy prosecutions between 1650 and 1699, representing 2.8% of all criminal prosecutions, (63) and just one in the eighteenth century. (64) Although this latter figure undercounts the real total, his general point seems sound: increasingly, blasphemers were prosecuted "only when their blasphemies took on the character of a public provocation." (65)

The reported cases brought under the Criminal Code in the first half of the twentieth century all involved blasphemous libel in the strict sense of written blasphemy, usually in anti-clerical books, pamphlets, or posters. (66) In contrast, the New France cases primarily appear to involve verbal blasphemy made during arguments or altercations, though a few cases are unclear as to the context in which the statements were made. (67) Blasphemy of this latter type was likely seen more as a threat to civility and common decency than as attempted criticism of a major social institution like the Church.

Two consistent patterns can be drawn from the demographics of the defendants, they were all: (1) male; and (2) primarily from middle- or lower-class professions such as sailors, carpenters, soldiers, and the like. This is not surprising, as New France was primarily a male colony devoted to fur trading and the military: (68) For criminal behaviour generally, males made up 80% of those prosecuted, and the military contributed a quarter of that total. (69) New France was "a highly status-ordered society, with a rigid hierarchical framework ... [i]t was at the church, every week, that these social gradations were made manifest." (70) Presumably, those near the upper end of this hierarchy would be extremely careful not to slide down by publicly uttering blasphemous statements.

As a caution, it must be reiterated that this analysis of blasphemy law in New France rests upon infirm foundations. As a tentative exploration, however, it appears that the evidence indicates that blasphemy was rarely prosecuted and lightly punished in New France, despite the strong ties between church and state. In a colony with such a high degree of religious homogeneity, (71) the role played by blasphemy law in other eras and countries, where it suppressed heresy and dissent, was simply unnecessary. Instead, blasphemy law appears to have operated as a guarantor of civil discourse in a tough frontier colony initially made up mostly of soldiers and fur traders. In other words, blasphemy was not a sin, but the mark of a coarse tongue.

III. BLASPHEMY IN EARLY NINETEENTH-CENTURY RURAL ONTARIO

A. CONTEXT

The British conquest of Canada brought with it British common law and principles of justice that were, at least in theory, more favorable to the accused: habeas corpus, the presumption of innocence, representation by attorney, and trial by jury. (72) Available punishments remained severe, however, including capital punishment, flogging, and, by the 1830s, imprisonment in institutions where complete silence and solitary confinement were mandatory. (73) In most districts in Ontario, court sessions were held on a quarterly basis in front of local magistrates who heard most non-serious criminal cases. (74) These magistrates were appointed directly by the lieutenant-governor and most of them were not lawyers. (75) According to David Murray, Upper Canada's first lieutenant-governor "lost no opportunity to exhort the colony's legislators to build colonial justice on a firm foundation of Christian morality." (76) Religious diversity was far greater in Ontario than in New France, though this diversity was still within the context of more-or-less mainstream Christianity. (77) The Anglican Church received special privileges, (78) but Catholicism, although the subject of widespread prejudice, was not formally restricted. (79) Smaller religious groups like Disciples of Christ, Universalists, and Mormons thrived, according to John Grant:
 As the more familiar churches, both British and American, sought to
 cope with the expanding population of Upper Canada, they were
 subjected to an onslaught by aggressive new religious groups.
 During the 1830s one such movement after another arrived on the
 scene, threatening to take the province by storm or merely
 gathering small groups of believers in scattered corners. (80)


A perhaps surprising 16.7% of the population claimed "no religious preference" or "no religious creed" as of 1842, a proportion that would quickly drop over subsequent decades. (81) At least in the view of clergy and missionaries, most of the settlers in Ontario during the first few decades of the century knew little in the way of religious precepts or doctrine. (82) This was troubling given the widespread view that "Christianity taught people to live virtuous lives, and virtue made people into useful and productive subjects." (83) However, churches in the nineteenth century rarely became heavily involved in social morality campaigns, though there were occasional screeds against perceived problems like mail delivery on Sundays, the theatre, and Freemasonry. (84)

B. CASES

The following cases arose in two largely rural Ontario counties: the historical District of Johnstown (85) (now the United Counties of Leeds and Grenville) and Lincoln County (86) (now the Regional Municipality of Niagara). These seven cases, beginning in 1802 and ending in 1833, demonstrate that Canadian courts in at least some areas of Ontario were not reluctant to adopt the English common law crime of blasphemous libel. (87) Courts even borrowed or developed a standardized indictment for the offense:
 The Jurors ... present that [name of defendant and residence],
 being a person of an evil and wicked mind, and wickedly, and
 unlawfully minding, contriving, and intending, as much as in him
 lay to vilify, and contemn the Christian Religion, on or about
 [date], with a loud voice, did wickedly, and maliciously (in the
 presence and hearing of divers of His Majesty's Liege Subjects)
 utter and speak the following unlawful and blasphemous words, to
 wit [blasphemous language], to the evil and pernicious example of
 all others in like case offending, and against the peace of Our
 said Lord the King his crown and dignity. (88)


This format is followed in the earliest blasphemy indictment in this research set, the 1802 case of a man named Daniel Smyth, for having allegedly said that "Jesus Christ came from a mean family, he was a fool, and died to fulfill the prophecy only" and "[i]n reality there was no such person as Jesus Christ." (89) Smyth was apparently incarcerated for at least some months before being released on bail, (90) but presumably avoided trial due to the "No Bill" scrawled on the original indictment by the jury foreman. (91)

Three years later, this standard indictment appears in the case of Joseph Easton, accused of having said that "Jesus Christ was a bastard." (92) However, a second indictment was also created that levels the same basic accusation but with wording that departs from the usual language; in this second indictment, Easton is accused of using "contumelious, opprobrious, and blasphemous" language "thereto tending to bring infamy and disgrace upon our Blessed Lord and Saviour Jesus Christ." (93) The jury returned a true bill, but the indictment was later quashed. (94)

An 1810 case presents the unusual situation where a town constable heard blasphemous speech firsthand. (95) On May 1, a labourer named Neil Gallaspie is alleged to have said that "God Almighty was a fool and a God damned fool" and that "Jesus Christ was a God damned fool, and that he (the said Neil Gallaspie) would stamp under his (the said Neil Gallaspie) foot any person that would gainsay it." (96) A constable named Cornelius Smith apparently decided against gainsaying it at the time, but instead waited a day until he could find a Justice of the Peace to swear out a complaint and arrest warrant. (97) The jury returned a true bill, but other than that we have no information on Gallaspie's fate. (98) The case may indicate that justice could move relatively swiftly against blasphemers, but that blasphemy wasn't considered such a serious offence that an on-the-spot warrantless arrest was justified. (99)

A merchant named Billa Flint was indicted the following year for allegedly saying that "I'll be damned if I'll take Jesus Christ's bond for the security of land" and that "he would sue God Almighty if he had a note against him--as quick as any man, if he made him mad." (100) However, Flint pied not guilty and was acquitted by the trial jury. (101)

The last of the five cases from the District of Johnstown concerned a "labourer and transient person" named Valentine Butterfield. (102) According to the indictment, Butterfield said "God damn and Bugger the Holy Ghost, I don't care a damn, and that Jesus wept and damned well he might." (103) After the grand jury returned a true bill, Butterfield was arrested and, unable to come up with money for bail, was committed to jail pending trial. (104)

Indictments rarely provide the context in which the allegedly blasphemous statements were made. The first of the two cases from Lincoln County is a different story, however, as the file contains affidavits sworn by seven different people against a man named Solomon Rose. (105) The handwritten affidavits are difficult to decipher, but it appears that after delivering a sermon, he told the congregation that "he would to God that all Church of England books, catechisms, and beads ... were eradicated from the face of the Earth" and that "the Trinitarian Doctrine was an error." (106) Rose was probably a travelling preacher as his words clearly surprised the congregation and the sermon took place at a school house, (107) but it must have been predictable that making such remarks in a province with a strong Anglican presence would be likely to cause consternation. (108) Rose's sermon is the first blasphemy case we have seen involving what appears to be a real attempt to assert a theological position. (109) Unfortunately, the file contains no mention of whether these multiple affidavits led to an indictment.

The last case in this research set seems to be styled as a prosecution between a complainant named Badgley and an innkeeper named John Sweazy, who is alleged to have blasphemed by saying "God damn God Almighty, I am not afraid of his sending the Cholera to me." (110) Badgley's complaint states that Sweazy's conduct was "contrary to the form of the statute in that case made and provided[,]" but it is not clear what statute is referred to by this remark. (111) Apart from recognizance orders made to ensure Badgley and Sweazy each appeared at future proceedings, the file contains no further clue as to how the case was resolved. (112)

C. ANALYSIS

These early rural Ontario blasphemy cases (Figure 3) show several similarities with the New France cases. In both research sets, all of the defendants were male, all of the defendants had lower- or middle-class occupations (if their occupation was listed), and they were all accused of oral, not written, blasphemy. The frequency of cases (on average, once every five years or so) is also roughly similar. The incomplete records available for the Ontario cases makes it impossible to determine whether punishments were similar to those in New France. It is interesting to note, however, that guilt in the New France cases seems almost a foregone conclusion, but the situation appears to have been different in Ontario: in the five cases in which we know an indictment was issued, three of them were resolved favorably to the defendant and we have no information on whether the other two led to a conviction. It's possible that the difficulties of securing a conviction, due to lack of evidence, for oral blasphemy eventually prompted the trend to prosecute only written blasphemy. Murray notes that "[s]uccessful prosecutions for morals offenses at the district quarter session were infrequent, no doubt because of the problems involved in ensuring that the prosecutor and witnesses were available for the trial and then convincing a jury that the alleged offence had occurred." (113)

Blasphemous libel prosecutions brought under the Criminal Code in the twentieth century primarily involved attacks on religious leaders, doctrines, or institutions. (114) In these early nineteenth century cases, however, it is the deities themselves who are insulted: God is called a "damned fool[,]" (115) threatened with litigation, (116) and warned not to send Cholera; (117) Jesus is labelled a "fool[,]" (118) a "bastard[,]" (119) a "God damn fool[,]" (120) and impugned as insufficiently credit-worthy to act as a guarantor in a land transaction. (121) Only in Solomon Rose's preaching against Anglican rituals (122) is there a clear example of the type of theological or inter-denominational rivalry that would be the common cause of blasphemy prosecutions in England and twentieth-century Canada. Although secondary sources describe Ontario in the early 1800s as being a hotbed of competing religious movements, (123) it doesn't appear that the churches turned to the courts to use blasphemy law as a weapon.

IV. CONCLUSION

This article has attempted to briefly sketch two time periods of the history of blasphemy in Canada by looking at New France and early 1800s rural Ontario. Research of this type is necessarily impressionistic and incomplete, and a careful, exhaustive inquiry into these and other time periods and provinces is necessary before firm conclusions can be drawn on how blasphemy law operated in Pre-Confederation Canada. From the snapshots examined here, it appears reasonable to make a few general inferences. First, blasphemy was a crime that was relatively rarely prosecuted. It was not a hammer used by a unified Church and State to stamp out all forms of dissent. Instead, it operated primarily to maintain what was considered an acceptable level of social discourse. Second, being accused of blasphemy was not necessarily a major life-changing event--it usually led to fines in the New France era or to a reasonable chance of avoiding conviction in the early 1800s Ontario era. Finally, and most clearly, prohibitions on blasphemy did not suddenly appear in this country with the 1892 Criminal Code--the country has a long and interesting history of prohibiting irreligious talk. More research in this area would inform discussion on what, if anything, Canada should do with its current prohibitions on blasphemy and religious hate speech.

JEREMY PATRICK (1)

(1.) Ph.D. Candidate, Osgoode Hall Law School. The author welcomes feedback at jhaeman@hotmail.com.

(2.) See Jeremy Patrick, Not Dead, Just Sleeping: Canada's Prohibition on Blasphemous Libel as a Case Study in Obsolete Legislation, 41 U.B.C.L. REV. 193, 215 (2008).

(3.) See id.

(4.) See id. at 231.

(5.) See ALLAN GREER, THE PEOPLE OF NEW FRANCE (Craig Heron & Franca Iacovetta, eds., Univ. Toronto Press 1997); see also JOHN W. GRANT, A PROFUSION OF SPIRES: RELIGION IN NINETEENTH-CENTURY ONTARIO (Univ. Toronto Press 1988).

(6.) See Archives of Ontario,

http://ao.minisisinc.com/scripts/mwimain.dll?get&file=[ARCHON]search.htm (search "blasphemy") (last visited Sept. 23, 2009). For example, a search of the Archives of Ontario's electronic database for "blasphemy" brings up several cases from the District of Johnstown in the first half of the nineteenth century, but only a couple of cases from a similar time period anywhere else in Ontario. Id. Does this indicate that the District of Johnstown had an unusual number of blasphemy prosecutions during this period, or that criminal files from other counties were indexed differently? A similar conundrum can be found with the files available in Quebec's Bibliotheque et Archives Nationales ("BANQ"): an electronic database search for "blaspheme" brings up several cases from the New France era, but hardly any after that period. See BANQ,

http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "blaspheme") (last visited Sept. 23, 2009). In addition, correspondence on file between the author and the BANQ confirms that not all criminal files from the New France era are indexed or available online. See also John A. Dickinson, New France: Law, Courts, and the Coutume de Paris, 1608-1760, 23 MAN. L.J. 32, 51 (2005). Dickinson states that: "It is impossible to know and measure the extent of criminal activity in New France. Extant documentation revealed types of crime prosecuted and the fate of the accused; but as with all early modern data, this picture is necessarily incomplete." Id. On the other hand, the tally of New France blasphemy prosecutions made during this method came very close to the count reached by (presumably) paper-based research in the early 1980s. See infra note 63.

(7.) This can make for a frustrating experience for both the writer and the reader, as traditional criminal case narrative (accusation, verdict, and sentence) is often impossible. The most feasible approach seems to be to treat these documentary fragments as a set of data points that, taken as a whole, may reveal the general trend of blasphemy prosecutions in each time period.

(8.) See, e.g., BANQ, Ordonnance de l'intendant Hoequart qui condamne le nomme Augustin Hedmond (July 23, 1743), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Ordonnance de l'intendant Hocquart"; follow Fonds Intendants; go to page 21; then follow El, S1, P3518) (sentencing the defendant to a three "livre" fine for having "uttering oaths, curses and insults at the door of the church and carried a scandal") (last visited Apr. 5, 2010) [hereinafter Hedmond]; see also BANQ, Proces contre le nomme Catignon (Oct. 9, 1679), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Proces contre le nomme Catignon"; follow Funds Prevote de Quebec; then follow TL1, S11, SS1, D11, P14) (last visited Apr. 5, 2010) [hereinafter Catignon]; BANQ, Proces de Pierre Perot (July 19, 1679), http://pistard.banq.qc.ca/unite_chercheurs/recherche simple (search "Pierre Perot"; then follow Fonds Prevote de Quebec; then follow TL1, S11, SS1, D13, P26) (last visited Apr. 5, 2010) [hereinafter Perot]. I have found this problem especially vexing for documents handwritten in French from the 1600s and 1700s. Instead of the originals, I have often relied on archivist summaries of each file which are of varying completeness. Thus, this area is certainly one that warrants further research.

(9.) See, e.g., GREER, supra note 5 (providing a panoramic description of Quebec in the New France era); see also W.J. ECCLES, ESSAYS ON NEW FRANCE (Oxford Univ. Press Canada 1987). For an analysis of nineteenth-century Ontario see GRANT, supra note 5, and WILLIAM WESTFALL, TWO WORLDS: THE PROTESTANT CULTURE OF NINETEENTH-CENTURY ONTARIO (McGill-Queen's Univ. Press 1989).

(10.) See Patrick, supra note 2, at 228-31.

(11.) See id. at 215. The drafters of the blasphemous libel section of the Criminal Code borrowed from English law instead of domestic common law for the text of the blasphemous libel provision. See id

(12.) See id. at 218 28 (providing brief summaries of several blasphemous libel cases in Canada).

(13.) See GREER, supra note 5, at 5.

(14.) See ECCLES, supra note 9, at 39.

(15.) See infra Figure 2.

(16.) ECCLES, supra note 9, at 110.

(17.) Id. at 56. Wealthy land-owners served as officers in the Troupes de la Marine. See id.

(18.) See GREER, supra note 5, at 44.

(19.) See id. at 34.

(20.) See Jacques Mathieu, Sovereign Council, THE CANADIAN ENCYCLOPEDIA (2010), http://www.thecanadianencyclopedia.com (search "Sovereign Council", then follow "Sovereign Council" hyperlink) (last visited Apr. 5, 2010). This council was originally called the Sovereign Council before being renamed the Superior Council in 1703. Id.; see also GREER, supra note 5, at 88.

(21.) See Dickinson, supra note 6, at 47.

(22.) See id. at 48-49.

(23.) See ANDRE CELLARD, PUNISHMENT, IMPRISONMENT AND REFORM IN CANADA, FROM NEW FRANCE TO THE PRESENT: HIST. BOOKLET NO. 60 1, 4 (2000).

(24.) See Dickinson, supra note 6, at 34-35.

(25.) See id. at 49.

(26.) See CELLARD, supra note 23, at 4; see also Dickinson, supra note 6, at 35 ("Since there were no prescribed penalties for specific crimes, judges had considerable discretion to take into consideration circumstances of the crime and the defendant's social position.").

(27.) See Dickinson, supra note 6, at 50.

(28.) See ECCLES, supra note 9, at 29; see also GREER, supra note 5, at 45 (noting that there were some disputes between the Catholic Church and the colonial government in regards to the jurisdiction of ecclesiastical courts); Cornelius Jaenan, Church-State Relations in Canada (1604-1685), 34 CCHA STUDY SESSIONS 9, 17 (1967) available at http://www.umanitoba.ca/colleges/st_pauls/ ccha/Back%20Issues/CCHA1967/Jaenen.pdf. According to Jaenan, the disputes included Bishop Laval's failure to have the civil justice system execute a recidivist blasphemer. See id

(29.) GREER, supra note 5, at 45.

(30.) ECCLES, supra note 9, at 36; see also Jaenan, supra note 28, at 28 ("The general impression one obtains of the colonists is that while independent and self-assertive, they were generally devout and much attached to various pious practices.").

(31.) See Jaenan, supra note 28, at 27.

(32.) Id. at 25.

(33.) Before this time period, at least one blasphemy prosecution has come to light-one that apparently ended in the execution of a Huguenot named Daniel Vuil in 1661. See Andre Vachon, Vuil, Daniel, DICTIONARY OF CANADIAN BIOGRAPHY ONLINE, http://www.biographi.ca (search "Vuil", follow "Vuil, Daniel" hyperlink) (last visited Apr. 5, 2010). Along with blasphemy, Vuil was alleged to have partaken in witchcraft and only pretended to convert to Catholicism. See ROBERT-LIONEL SEGUIN, LA SORCELLERIE AU CANADA FRANCAIS: DU XVIIE AU XIXE SIECLES (Montrral: Librairie Ducharme, 1961) (notes on file with author). Seguin's book contains an interesting discussion of cases prosecuted as witchcraft but that could also be viewed as blasphemy, such as the use and mutilation of crucifixes in sorcerous divination ceremonies. See id. at 89-118.

(34.) See BANQ, Proces de Jacques Bigeon (Dec. 16, 1665), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Jacques Bigeon," follow Fonds Conseil; then follow TP1; then follow TP1, S777, D107) (last visited Apr. 5, 2010).

(35.) See id.; see also Figure 1.

(36.) See Patrick, supra note 2, at 199.

(37.) Id.

(38.) See Patrick, supra note 2, at 213 n.l13 (explaining how various bodies of law have historically confused the concepts of blasphemy and profanity).

(39.) See id.

(40.) See Perot, supra note 8.

(41.) See BANQ, Requete au procureur du roi par un nomme Corruble, (Oct. 29,1680--Mar. 12, 1681), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Requete au procureur du roi par un nomme Corruble"; follow Fonds Prevote de Quebec; then follow TL1, S11, SS1, D13, P43) (last visited Apr. 5, 2010).

(42.) See BANQ, Proces de Charles Catignon, prisonnier (Oct. 7, 1679--Nov. 7, 1679), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Proces de Charles Catignon"; follow Fonds Conseil; then follow TP1, S777, Dl12) (last visited Apr. 5, 2010) [hereinafter Proces de Charles Catignon].

(43.) Id.

(44.) See Catignon, supra note 8.

(45.) See Proces de Charles Catignon, supra note 42. The witnesses seem to have come from the middle and upper classes--merchants, wealthy land owners, and two ships' captains. See id.

(46.) See BANQ, Proces contre Charles Catignon (Nov. 8, 1679), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Proces contre Charles Catignon"; follow Fonds Prevote de Quebec; then follow TL1, S11, SS1, D11, P21) (last visited Apr. 5, 2010).

(47.) See BANQ, Sentence confirmant une sentence de la Prevote de Quebec (July 28, 1681), http://pistard.banq.qc.ca/unite_chercheurs/recberche_simple (search "Sentence confirmant une sentence de la Prevote de Quebec"; then follow Fonds Conseil souverain; then follow TP1, S28, P2465) (last visited Apr. 5, 2010).

(48.) BANQ, Requete du procureur du Roi au lieutenant general de la Prevote de Quebec afin qu'une information soit faite du jeune Lalande (Nov. 2, 1680), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "faite du jeune Lalande"; follow Fonds Conseil; then follow TP1, S777, D113) (last visited Apr. 5, 2010).

(49.) See Hedmond, supra note 8. Fines were the most common punishment for criminal behaviour. See Dickinson, supra note 6, at 50.

(50.) Cellard, supra note 23, at 5-6. An example of the carcan being applied to blasphemy is the 1668 case of Jean Ronceray. See BANQ, Registre civil de la Prevote de Quebec, no 2 (Jan. 27, 1668-Oct. 26, 1668), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Registre civil de la Prevote de Quebec"; follow Fonds Prevote de Quebec; then follow TL1, S11, SS1, D2) (last visited Apr. 5, 2010). According to Dickinson, public shaming was a rare punishment, and in the eighteenth century, was only imposed twice. See Dickinson, supra note 6, at 50.

(51.) BANQ, Requite du procureur du Roi, demandeur et accusateur d'une part, a l'encontre de Louis Morent (Jan. 26, 1699), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "l'encontre de Louis Morent"; follow Fonds Juridiction royale des Trois-Rivieres; then follow TL3, S11, P2557).

(52.) Id.

(53.) See Figure 2.

(54.) See BANQ, Proces contre le nomme Jean Briere (Sept. 10, 1678), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Jean Briere"; follow Fonds Prevote de Quebec; then follow TL1, S11, SS1, D11, P10) (last visited Apr. 5, 2010).

(55.) Id.

(56.) See BANQ, Appellation raise au neant de la sentence de Jean Briere (Oct. 22, 1678), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "Jean Briere"; follow Fonds Conseil; then follow TP1, S28, P2442) (last visited Apr. 5, 2010).

(57.) ANDRE LACHANCE, CRIMES ET CRIMINELS EN NOUVELLE-FRANCE 63 (Les Editions Du Boreal Express (1984) (translation mine). For further discussion of Lachance's book see infra note 63; see also BANQ, Appel mis a neant de la sentence rendue, le 14 juin 1752 (Aug. 28, 1752), http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple (search "appel mis a neant de la sentence rendue"; follow Fonds Conseil; then follow TP1, S28, P17320) (last visited Apr. 5, 2010).

(58.) LACHANCE, supra note 57, at 65.

(59.) See CELLARD, supra note 23, at 5-6.

(60.) Id.

(61.) LACHANCE, supra note 57, at 63.

(62.) See Ontario, Archives of Ontario, http://ao.minisisinc.com/scripts/mwimain.dll?get&file=[ARCHON]search.htm (enter search term "blasphemy"; then follow "Search" hyperlink; then follow the "8 Files/Item Descriptions" hyperlink) (last visited Oct. 12, 2009); see also BANQ, http://pistard.banq.qc.ca/unite_chercheurs/recherche_simple, enter search term "blasphrme"; then follow the "Rechercher" hyperlink) (last visited Oct. 12, 2009).

(63.) See LACHANCE, supra note 57, at 129. Unfortunately, Lachance devotes only three pages to blasphemy and witchcraft combined, and only mentions one individual blasphemy prosecution. See id. at 63-65. During the early 1980's, Lachance, presumably using paper archival indexes, counted 14 blasphemy prosecutions between 1650 and 1699, indicating the BANQ electronic database contains a relatively full picture of blasphemy cases in the New France era. See id. at 63. This author's own research yielded there were eleven blasphemy cases prosecuted during this time.

(64.) See id. at 63.

(65.) Id.

(66.) See, e.g., Patrick, supra note 2, at 220-28 (documenting how the courts during this period tended to define the crime of blasphemy).

(67.) See LACHANCE, supra note 57, at 63-64.

(68.) See ECCLES, supra note 9, at 42, 56.

(69.) See Dickinson, supra note 6, at 52. For all criminal defendants between 1712 and 1759, Lachance states that 785 out of 977, 80.3%, were male. See LACHANCE, supra note 57, at 89. With blasphemy prosecutions accounting for such a small number of the total amount of cases prosecuted, it is impossible to make any statistically significant conclusions.

(70.) ECCLES, supra note 9, at 35.

(71.) See infra Part A.

(72.) See CELLARD, supra note 23, at 8; see also DAVID MURRAY, COLONIAL JUSTICE, MORALITY, AND CRIME IN THE NIAGARA DISTRICT 1791-1849 3 (Univ. Toronto Press, 2002) ("From its creation as a separate colony in 1791, Upper Canada maintained the English system of law, law-making, and law enforcement").

(73.) See id. at 8-13.

(74.) See id. at 8; Murray, supra note 72, at 7.

(75.) See Murray, supra note 72, at 23, 29.

(76.) See Murray, supra note 72, at 3.

(77.) GRANT, supra note 5, at 25 ("Religious variety in the infant colony was thus considerable, but its range was still relatively narrow ... [t]he great bulk of early settlers would have identified themselves without hesitation as belonging to the mainstream of Protestantism."). "Reflecting the religious diversity of the middle states, from which much of Upper Canada's early population was derived, this pattern embraced a considerable spectrum of conviction and custom." Id. at 22.

(78.) See id at chs. 6, 9.

(79.) WESTFALL, supra note 9, at 22 ("Upper Canada Catholics were not subject to the same legal restrictions as they were elsewhere ... [but they] must have suffered personally from the intense prejudices that ran through Upper Canadian society.").

(80.) GRANT, supra note 5, at 72-73.

(81.) See id. at 222 (explaining that the percentage fell to 1.2% by 1871).

(82.) See id. at 33, 74.

(83.) WESTFALL, supra note 9, at 23 (discussing the views of Bishop Strachan); see also GRANT, supra note 5, at 66 ("To some extent Christianity was valued, even believed, because without it no stable social order could exist.").

(84.) See GRANT, supra note 5, at 108, 189-191. The "notable exception to this inactivity," according to Grant, is the church's heavy focus on "the battle against strong drink." See id. at 108. Public blasphemy is not mentioned as a concern.

(85.) See, e.g., LOVELL'S GAZETTEER OF BRITISH NORTH AMERICA 272 (P.A. Crossby ed., 1881). A historical plaque located in Johnstown, Ontario at the junction of Highway 2 and Highway 16 states:
 In 1789-90 a town plot of one mile square was laid out in this
 vicinity. Many loyalists, including Sir John Johnson, obtained lots
 in this settlement. A sawmill and grist-mill were constructed, and
 in 1793 it was made the administrative centre of the Eastern
 District. A courthouse and gaol were erected and the court of
 quarter sessions, which administered the districts local
 government, met alternately here and in Cornwall.
 Lieutenant-Governor Simcoe stayed in Johnstown in 1792 and 1795. In
 1808 the courts were moved to Elizabethtown (Broekville) and
 despite its favourable location as a port, Johnstown's further
 development was retarded by its shallow harbour.


Historical Plaques of Leeds-Grenville, http://www.waynecook.com/aleeds-grenville.html (last visited Sept. 30, 2009).

(86.) See LOVELL'S GAZETTEER OF BRITISH NORTH AMERICA, supra note 85, at 288; see also DUNCAN C. SCOTT, THE MAKERS OF CANADA: JOHN GRAVES SIMCOE 58 (Pelham Edgar ed., 1905) ("In the summer of 1782, there were sixteen families, comprising ninety-three persons, settled at Niagara.... These sixteen families were supporting themselves with the assistance of rations granted by the government, and they are the first settlers...."); see generally GEORGE W. HOLLEY, NIAGARA: ITS HISTORY AND GEOLOGY, INCIDENTS AND POETRY, WITH ILLUSTRATIONS passim (Sheldon and Co. ed., 1872).

(87.) See, e.g., Indictment for Blasphemy, The King against Neill Gallaspie, Toronto, Archives of Ontario (RG 22-14, Box 2) (May 2, 1810) [hereinafter Gallaspie Indictment].

(88.) See id. (Toronto, Archives of Ontario (RG 22-14, Box 1)).

(89.) See Indictment for Blasphemy, The King against Daniel Smyth, Toronto, Archives of Ontario (RG 22-14, Box 1), Brockville General (Quarter) Sessions (July 15, 1802) [hereinafter Smyth Indictment].

(90.) See Indictment for Blasphemy, The King against Daniel Smith, Toronto, Archives of Ontario (RG 22-14, Box 1), Brockville General (Quarter) Sessions (Jan. 1803) (setting bail at 100 pounds). The different spellings of "Smyth" and "Smith" are in the original documents.

(91.) See Smyth Indictment, supra note 89. Unfortunately, as with all of the cases in this section, the files do not reveal the nature of the evidence against Smyth or why the grand jury decided the way it did. In order to find a true bill, 12 of the twenty-four grand jurors had to sign the indictment. See Murray, supra note 72, at 54-55.

(92.) See Indictment for Blasphemy, The King against Joseph Easton, RG 22-14, Box 1, Brockville General (Quarter) Sessions (Feb. 20, 1805) [hereinafter Easton Indictment].

(93.) Id.

(94.) See id.

(95.) See Gallaspie Indictment, supra note 87.

(96.) Id.

(97.) See id.

(98.) Id.

(99.) Id.

(100.) Indictment for Blasphemy, The King & Billa Flint, Toronto, Archives of Ontario (RG 22-14, Box 3), Johnstown District Court of General Quarter Sessions of the Peace (Sept. 13, 1811) [hereinafter Flint Indictment]. The indictment contains the note "Billa Flint--300 [pounds sterling]," which was presumably the amount set for bail. Id.

(101.) See id.

(102.) See Indictment for Blasphemy, The King & Valentine Butterfield, Toronto, Archives of Ontario (RG 22-14, Box 4), Johnstown District Court of General Quarter Sessions of the Peace (Jan. 26, 1818) [hereinafter Butterfield Indictment].

(103.) Id.

(104.) See id.

(105.) See Affidavits, King against Solomon B. Rose for Blasphemy, Lincoln County Court of General Sessions of the Peace, Toronto, Archives of Ontario (RG 22-372, Box 4, File 5) (July 16, 1829) (Microfilm: MS 10149) [hereinafter Affidavits].

(106.) See id.

(107.) See id.

(108.) See, e.g., GRANT, supra note 5, at 85, 86 (discussing the Church of England as the official religion); see also cases cited, supra notes 88-105.

(109.) See, e.g., Easton Indictment, supra note 92 (calling the blaspheming Easton a yeoman, and indicating in the indictment against him that the language was merely spoken for the sake of being boisterous); Gallaspie Indictment, supra note 87 (designating Gallaspie as simply a labourer uttering blasphemy). Arguably, the case of Daniel Smyth could fulfill this criterion, but the lack of context makes it unclear. See Smyth Indictment, supra note 89.

(110.) Information and Complaint, Joseph Badgely against John Nelson Sweazy for blasphemy, Toronto, Archives of Ontario (RG 22-372, Box 15, File 11), Lincoln County Court of General Sessions of the Peace (Sept. 19, 1832) (Microfilm: MS 10154) [hereinafter Complaint Against Sweazy]. Murray notes that this case took place during a cholera outbreak in the Niagara District, and that "the background suggests that the charge served as a convenient vehicle for Joseph Badgely to seek revenge on John Sweazy in a long-standing quarrel over a tavern license." See Murray, supra note 72, at 146.

(111.) Id. It is conceivable that this refers either to one of the rarely invoked English statutes prohibiting blasphemy and heresy (received as Canadian criminal law) or to an unknown act of the Legislative Assembly for Upper Canada.

(112.) In his work on the Niagara District, Murray identifies this case as "the single case for blasphemy for which the papers were sent to the attorney general," but notes that "[n]o trial on the charge of blasphemy was ever held and the case remained unresolved." See Murray, supra note 72, at 146.

(113.) See Murray, supra note 72, at 83.

(114.) See Patrick, supra note 2, at 220-228.

(115.) Gallaspie Indictment, supra note 87.

(116.) Flint Indictment, supra note 100.

(117.) Complaint Against Sweazy, supra note 110.

(118.) Smyth Indictment, supra note 89.

(119.) Easton Indictment, supra note 92.

(120.) Gallaspie Indictment, supra note 87.

(121.) Flint Indictment, supra note 100.

(122.) Affidavits, supra note 105.

(123.) See GRANT, supra note 5, at 72-73.
FIGURE 2. KNOWN BLASPHEMY PROSECUTIONS IN NEW FRANCE

 ADD.
YEAR DEFENDANT OCCUPATION CHARGES

1665 Jacques Bigeon
1668 Jean Ronceray
1678 Jean Briere Sailor Murder
1679 Pierre Perot Carpenter
1679 Charles Catignon Quarter-master
1680 Pierre de Lalande Merchant
1680 Champigny Assult
1683 Jean Delage Tailor
1693 Andre Marcil
1699 Ignace Marenne Soldiers Billet
 de magie
 Fracois Jarrett
1699 Louis Morent Soldier
1717 Pierre Ango
1718 Jean Deslandes Mason
1743 Augustin Hedmond
1752 Pierre Beaudouin Soldiers Theft, Arson
 Joseph Ceilier
 Ponsian Alle
 Francois-Xavier
 Guernote
 Joseph Gamin

 SENTENCE
YEAR

1665
1668 Shaming
1678 Hanging
1679
1679 Fine
1680
1680
1683
1693
1699 Fine
1699 Fine, Shaming
1717
1718
1743 Fine
1752 Whipping, Exile
 Hard Labour

FIGURE 3: KNOWN BLASPHEMY CASES IN EARLY 1800s RURAL ONTARIO

YEAR DEFENDANT JURISDICTION OCCUPATIONS BOILERPLATE?

1802 Smyth Daniel Johnstown Yes
1805 Easton, Joseph Johnstown I Yes, I No
1810 Gallaspie, Neil Johnstown Labourer Yes
1811 Flint, Billa Johnstown Merchant Yes
1818 Butterfield, Johnstown Labourer/ Yes
 Valentine Transient
1829 Rose, Solomon Lincoln Preacher (?)
1833 Sucazy, John Lincoln Innkeeper

YEAR RESULT

1802 No Bill
1805 True Bill,
 Quashed
1810 True Bill
1811 Acquitted
1818 True Bill
1829
1833
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