Untitled article by W. H. M.

Pacific Press Publishing Company · New York · March 3, 1892

FromThe American Sentinel, Vol. 7, No. 9

Some More Tennessee Cases.

By W. H. M.

The sin of blasphemy and profanity is one which those who have undertaken the defense of the faith by the sword of the civil law have ever visited with severe punishment. The code of Tennessee has presumed to place profanity within the jurisdiction of the courts of that State, and has left the discrimination as to what is profanity with the court. The Tennessee code of 1884 has these sections:—

2291. Any person who shall profanely swear or curse in the hearing of any justice of the peace, or shall be convicted of profanely swearing and cursing before a justice, shall forfeit and pay fifty cents for every oath or curse.

2292. Any person executing any public office who shall be convicted of profanely swearing and cursing, shall forfeit one dollar for each oath or curse.

2293. Any person who shall profanely swear or curse in the presence of any court of record, may be fined at the discretion of the court, and imprisoned not exceeding twenty-four hours.

The internal evidence contained in the opinions of the judges given in some of the cases reported will be sufficient to show the animus of this law, and prove whether it be civil or religious in character. Profanity was first held to be indictable, in Tennessee, by Judge Caruthers in the case of State vs. Graham at the September term of Court held at Knoxville, in 1855. 3 Sneed 134. In this case the judge adopted the inherited principle of North Carolina cases, and in support of his course referred to the Carolina law of 1741, enacted by Governor Gabriel Johnson, under a Church and State rule, in which a graduated series of fines is established for the punishment of the offense, according to the condition of the offender and the place in which the profane speech was spoken.

The sections here quoted are manifestly, from their similar form, patterned after the English law of 1741, with the exception that the Tennessee law omits the penalty of three hours in the stocks which Governor Johnson affixed to his act, in addition to the fine. This act of 1741, as has been previously seen, is, without possibility of denial, a religious law in form and intent. It makes no pretense of being anything else. Yet from it this statute is copied, and to it Judge Caruthers refers as authority. The Judge carries the derivation of this law still further and cites the old English statute of 19 Geo. 2 ch. 21, which is constructed in precisely similar lines,—of a graduated series of fines for persons of different rank, etc., in different situations,—as is its provincial Carolina child, and its United States Tennessee grandchild. The authority he quotes for this is “Blackstone’s Commentaries,” from the chapter on “Offenses Against God and Religion.” Thus this law traced to its source is found to be religious there, and religious in its character throughout its whole course. But Judge Caruthers saw that these authorities would only uphold the punishment of single offenses by fine before a justice of the peace, therefore to justify the indictment of such an offender he cites as authority two Carolina precedents wherein the original English enactments of the English law were improved upon for their own purposes by the Carolina courts, and the judges legislated that “several oaths” constituted a nuisance which was liable to indictment, and that the charge “Did in the public street curse and swear and take the name of God in vain,” was good, and under it the culprit might be indicted as a common nuisance. Having quoted thus from the Church and State laws of the English province of Carolina, and the laws of England itself, of professedly religious purpose, with the intent to make his position still more impregnable he goes back to the fountain head and says, “It is in violation of the

second commandment, and the general injunctions and precepts of religion; it generates a contempt for holy things,”—therefore he follows the Carolina precedent, being convinced, as he says, that “it is difficult to conceive how profane cursing and swearing in public could fall short of what the law denominates a nuisance.”

In holding thus the Judge seems entirely unconscious of the fact that he is ignoring the explicit wording of the statute of the State, as well as that of the different laws from which it has been transmitted. The language of the statute is, in one section, “shall forfeit and pay fifty cents for every oath or curse,” and in another section, “shall forfeit one dollar for each oath or curse,” showing that it was the clear intent of the statute to provide for a repetition of oaths by affixing a certain penalty to each and every profane expression. Nevertheless, Judge Caruthers follows the precedent in which the Carolina judge not only went beyond the limit of his jurisdiction, but directly contrary to the expressed language of the statute of his State.

The next reported case of this character came before the March term of court, 1871, having been appealed from an arrest of judgment in the Circuit Court in 1867. The presentment charges the defendant with uttering “profane and blasphemous language as therein stated to the great scandal and nuisance of all good citizens, etc.” The opinion of the court was delivered by Judge Nelson, and after succinctly stating the case, he decides the question in two concise sentences, thus:—

The offense was held to be indictable, in an able and exhaustive opinion by Judge Caruthers, in the State vs. Graham, 3 Sneed 134, and no other citation of authorities is necessary. Reverse the judgment, let the defendant be fined five dollars, with costs, and remand the cause under the code.

Thus easily does error multiply itself and become a fixed habit in human practice. A North Carolina judge in 1809 decides that as the act of 1741 makes a single expression of profane swearing a finable offense under the law of Carolina, therefore he does not see why its repetition may not become a nuisance and be indictable,—therefore it is a nuisance and indictable,—and, forty-four years after, Judge Caruthers, by decision of the Supreme Court of Tennessee, puts in the fixed and settled law of that State, the same double error, of attempting to mete out a punishment by human law for that which is solely an offense against God and His law, and extending the scope of the action, from a petty offense under the jurisdiction of a justice, to an indictable crime referred to a higher court. The erroneous precedent is established, and as appears from the next case reported it is followed thereafter, without question or comment; and the only reason that the Judge thinks necessary to give in support of such a course is the citation of the single precedent. It is noticeable that the two cases thus far cited have served to give the highest judicial authority in the State to the transfer of the Carolina law against blasphemy and profanity into the Tennessee law, and to sanction its extension into an indictable offense when repetition might give color to the claim that the language was a nuisance. These two cases, that of State vs. Graham, 3 Sneed 134, decided by Judge Caruthers, and that of State vs. Steele, 3 Heiskell 133, decided by Judge Nelson, have gone thus far and no farther. In the September term, 1887, comes the case of State vs. Gaines, 7 Lea 410, in which Judge Cooper, after having quoted these two cases, continued:—

And it was said by the eminent judge who delivered the opinion of this court in the State vs. Graham that an isolated act of profanity was only punishable under the act of 1741 brought into the code, section 1725, which imposes a small pecuniary penalty for each oath, recoverable before a justice of the peace. It is possible, however, to conceive of cases where even a single oath, either by its terms, its tone, or manner, might under the peculiar circumstances, be held to be a nuisance.

In the case under his consideration the Judge held that the prisoner was only finable, not indictable, because the profanity was not in public, and although two oaths were proved against him it was only by the testimony of two separate witnesses, yet it is well worthy of note that in the italicised sentence Judge Cooper has given sanction to an enlargement of the sphere of possible indictment in these cases not before contemplated. In the very next reported case, State vs. Young, 10 Lea 165, Judge Cooper himself takes advantage of this extension of indictment to certain single cases of profanity, which he has himself suggested, to make a decision, upon his own previous decision as authority, to fix that doctrine as a precedent to be followed in succeeding cases. The matter was brought before the Supreme Court on an appeal in error from the Circuit Court of Wilson County. In the Circuit Court it was moved to quash the indictment on the ground that but one offense was charged, and, according to the statute, was therefore only to be proceeded upon before a justice of the peace. The Court overruled this motion and Young was convicted. He then appealed in error from that judgment.

In delivering his opinion Judge Cooper said:—

A single act of profanity would not, ordinarily, be sufficient to convict a defendant. But, as we have said, even a single oath, either by its terms, its tone or manner, or the circumstances under which it was uttered, might be a nuisance. Gaines vs. State, 7 Lea 110. Whether it was or not would be a question for the jury under a proper charge. The question, therefore, upon the second ground of the motion to quash, is whether the indictment should expressly charge that the oath was repeated more than once, or set out the circumstances by reason of which the single oath would have become a nuisance. But it would be difficult to embody in an indictment the tone and manner of utterance, or the variety of circumstances which would go to make a single oath a nuisance. . . . Affirm the judgment.

Thus by an accretion of precedent, so remarkably gained, has the severity of the provincial law in the case of profanity and blasphemy, been increased from simple fine by a justice of the peace to indictment by grand jury and arraignment before the higher court. For this there is not the slightest shadow of legislative authority. It is judicial legislation entirely. Under it he who is guilty of a single word of profanity is liable to indictment under which he will be subject to a heavy fine, and to increased costs in any event, as well as greater publicity given to the case and consequently wider disgrace; and this too notwithstanding that the statute takes into consideration just such cases, and provides for them a stated penalty for each oath, so that the enlargement of the application of the statute is extra judicial entirely, and without shadow of excuse to be found in the language of the statute itself or its evident intent.

This steady growth of error by subtle and almost imperceptible additions along judicial lines marks a great danger of the time. The assumption by the judiciary of power outside and beyond its legitimate sphere,—encroaching upon legislative prerogatives,—has ever been productive of the direst results. The most terrible events narrated in English and French history witness to this. Where a statute is an error to begin with its growth is nothing but the continuance of disease which must result in a monstrosity. And nothing has ever produced such monstrous forms of legalized injustice and barbarity as the unnatural graft of legal enactment upon religious prejudice.

If the reign of precedent is allowed to continue, and increase in the future as it has in the past, that in itself will be sufficient to eventually place this country entirely under religious rule, without any further legislation whatever.

W. H. M.