Blasphemy in pre-Criminal Code Canada: two sketches.

• Author: Patrick, Jeremy

1. 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)

2. BLASPHEMY IN NEW FRANCE

   1. 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)

   2. 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...