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The Judge subsequently adds (pp. 474, 475) :
“But it does not follow, because blasphemy is punishable as a crime, that therefore one is not at liberty to dispute and argue against the truth of the Christian religion, or of any accepted dogma.
Blasphemy implies something more than a denial of the truth of religion, even of the highest and most vital. A bad motive must exist : there must be a wilful and malicious attempt to lessen men's reverence for the Deity or for the accepted religion. But outside of such wilful and malicious attempt, there is a broad field for candid investigation and discussion, which is as much open to the Jew or the Mohammedan as to the professors of the Christian faith.
It is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious.
The courts have always been careful, in administering the law, to say that they did not include in blasphemy disputes between learned men upon particular controverted points. The constitutional provisions for the protection of religious liberty not only include within their protecting power all sentiments and professions concerning and upon subjects of religion, but they guarantee to every one a perfect right to form and promulgate such opinions and doctrines upon religious matters, and in relation to the existence, power, and providence of a Supreme Being, as to him shall seem just. In doing this he
acts under an awful responsibility, but it is not to any human tribunal."
Profane swearing in common conversation, by an irreverent, vulgar and indecent use of any of the recognized titles of the Supreme Being, is legally deemed to be an inferior kind of blasphemy. Thus Broom & Hadley, in their “Commentaries on the Laws of England” (American Edition, vol. 2, p. 375), speak of “profane and common swearing and cursing," as allied to blasphemy, “though inferior in degree.” They state the law of England as follows:
Every laborer profanely cursing or swearing shall forfeit one shilling; every other person under the degree of a gentleman, two shillings ; and every gentleman or person of superior rank, five shillings, to the poor of the parish ; and on a second conviction, double, and for every subsequent offense,
eble the sum first forfeited, with all the charges of conviction ; and in default of payment may be sent to the house of correction for ten days. Any justice of the peace may convict upon his own hearing, or the testimony of one witness; and any constable or peace officer, upon his own hearing, may secure any offender and carry him before a justice, and there convict him.”
Mr. Francis Wharton, in his “ American Criminal Law” (vol 1, p. 9), classes profane swearing among misdemeanors, and places it as such in the category of nuisances and scandals to the community,
analogous in this respect to public drunkenness, loud and obscene language so as to draw together a crowd in a thoroughfare, notorious lewdness, open cruelty or “any act which from its nature must prejudicially affect the morals and health of the community.”
The provisions of law in regard to profanity are generally referred to what is termed the police power of the State. Of this power Judge Cooley, in his “ Constitutional Limitations” (p. 572), says that it embraces “ the system of internal regulation by which it is sought not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.” Chief Justice Shaw, in the case of the Commonwealth vs. Alger (7 Cush., p. 84), defined the police power of a State to be “the power vested in the legislature by the constitution to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth and of the subjects of the same.” Under this general power of so regulating the conduct of individuals as to preserve the peace, good order, health and safety of society; are placed the provisions of law in relation to profanity.
Thus the Revised Statutes of the State of New York (Part I, chapter 20, title 8 and article 6,) class the law against cursing and swearing under the internal police of the State, and under the specific title that relates to “the prevention and punishment of immorality and disorderly practices.” The provisions of the law are as follows :
“ Section 61. Every person who shall profanely curse or swear shall forfeit one dollar for
offense. If the offense be committed in the presence and hearing of any justice of the peace, mayor, recorder or alderman of any city, while holding a court, a conviction of the offender shall be immediately made without any other proof whatever."
“Section 62. And if at any other time the offense be committed in the presence and hearing of such justice, mayor, recorder or alderman, under such circumstances as in the opinion of the magistrate amounts to a gross violation of the public decency, such magistrate may, in his discretion, convict the offender without other proof."
“ Section 63. If the offender do not forthwith pay the penalties incurred, with the costs, or give security for their payment within six days, he shall be committed by warrant to the common jail of the county for every offense, or for any number of offenses whereof he was convicted at one and the same time, for not less than one day, nor more than three days, there to be confined in a room separate from all other prisoners."
We present the above exhibit for the purpose of showing the theory of law, whether statute or common, in treating blasphemy and profanity as penal offenses. The offenses are the same in kind, and differ only in degree; and both are punishable on precisely the same ground. The courts have, in several instances, decided that the constitutional guaranty in favor of religious liberty is not violated by making these acts penal offenses, whether under the rules of common law or by specific statutes.
The theory of these decisions, expressed in some and implied in others, is that the object of the punishment is not to prevent the free discussion of any generally accepted religious doctrine, or to compel its acceptance, or to interfere with the exercise of religious liberty in the teaching of any doctrine, or to enforce any duty on religious grounds, or penally to rebuke any offense because it is a sin against God. No one of these purposes would be consistent with the constitutions of the American States. Justice Clayton is very explicit in disclaiming the idea that blasphemy is punishable as a sin against God; and with this the language of Justice Strong, as above quoted, fully accords.
It so happens, however, that while blasphemy and profanity are violations of the law of God, and in this sense sins, they are also grossly repugnant to the average moral sense of society. They con