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The manifest absence of any parallelism between the public school and the public prison, or between such a school and the army and the navy, shows at a glance that we cannot properly reason from the one to the other. Hence, chaplaincies in respect to prisons and in respect to the army and navy, defensible under our theory of the functions of government only on exceptional grounds and confined to the merest fraction of society, furnish no precedent for the public school, since in respect to it these grounds have no existence. If the two cases were parallel in their facts, then the exception which the State makes to the application of its general theory in the one case might be cited to sustain a similar exception in the other. No principle of common sense is better settled among lawyers and judges than that the citation of precedents not analogous to the case in hand proves nothing; and this is precisely the difficulty with this chaplaincy argument as applied to the public school.
CRIMINAL BLASPHEMY AND PROFANITY.
The fact that blasphemy and profanity are in this country treated as penal offenses, is sometimes referred to as indicating that the law, in this instance, allies itself with religion, and enforces the injunctions thereof by its own sanctions. These offenses are forbidden by the Bible; and, moreover, they seem, in distinction from murder and theft, to be specially committed against religion.
It does not, however, necessarily follow that they are punished as religious offenses. Though they are such, it may, nevertheless, be true that the view which the law takes of them is simply that of crimes against society, and that in this character, and this only, are they punished. This being true, then the punishment involves no legal alliance of the State with religion, and no purpose on religious grounds to give effect to its rules. Is this true? The object of the present article is to supply an answer to this question.
Dr. Theophilus Parsons, in his treatise on the “Rights of a Citizen of the United States," gives a
Glossary of Law Terms in common use,” in which he defines blasphemy to be “in law any false statementor language intended as a reviling of God” (p. 681). Bouvier, in his “ Law Dictionary,” says that it is" a false reflection uttered with a malicious design cf reviling God." He quotes Chief-Justice Shaw as declaring that "it embraces the idea of detraction when used toward the Supreme Being, as calumny usually carries the same idea when applied to an individual.”
In Abbott's New York Digest, New Edition (vol. 2, p. 611), blasphemy is defined as consisting “in maliciously reviling God or religion,” and reference is made to the case of The People vs. Ruggles 8) Johnson's Reports, p. 290), in which Chief-Justice Kent thus defined the term, and held the offense to be indictable and punishable under common law. The same Digest (Vol. I, p.549) says : “ Blasphemy against God, and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures, are offenses at common law, whether uttered by words or writings.” The wanton utterance of words in which Christ was declared to be a bastard, “with a wicked and malicious disposition, and not in a serious discussion on any controverted point,” is referred to as being "a public offense by the law of the land."
The Supreme Court of Pennsylvania, in the case of Updegraph vs. The Commonwealth (11 Sergeant & Rawle's Reports, page 394), said that blasphemy is the "open, public vilification of the religion of the country.” The Court declared it to be punishable on the ground of its being “injurious to and having a malignant influence on society.” It added that the “ malicious reviler" is the only person that can be punished under the charge of blasphemy.
A very lucid statement in regard to blasphemy, especially as to the grounds of its punishment, was made by Justice Clayton, of the Supreme Court of Delaware, in the case of The State vs. Chandler (2 Harrington's Reports, p. 353). The learned Justice said that the common law “sustained indictments for wantonly and maliciously blaspheming God or the Founder of the Christian religion, because such blasphemy tended to subvert the peace and good order which it was bound to protect. But it sustained no indictment for a mere sin against God where these objects of its care were not affected.” He added that the common law punished blasphemy only “when it tended to create a riot, or break the peace, or subvert the very
foundation on which civil society rested.” He further said that the common law “ took cognizance of offenses against God only where, by their inevitable effects, they became offenses against man and his temporal security.”
Justice Strong, of the Supreme Court of the United States, in his lectures on the “ Relations of Civil Law to Church Polity, Discipline and Property” (pp. 30, 31), observes :
“No State recognition of the Church, however, or even of religious obligation, is to be inferred from the fact that civil law punishes many offenses which are condemned by the divine law, and which the Church also condemns and punishes. Many offenses against civil society are acts prohibited by the Decalogue and by all Churches. False swearing, theft, adultery and murder are violations of municipal law, and persons guilty of them are punished by the authority of the State, not because the offenses are violations of the divine law, or the law of the Church, but because they are infractions of the rules which civil society has found it necessary to establish for its own protection. In many of the States orderly observance of the Sabbath and abstinence from unnecessary labor are enjoined by statutes. Penalties are also denounced against profaneness and blasphemy. But it would be a mistake to regard such enactments as Church recognitions. They may have been suggested by respect for religion ; but, as civil enactments, they are justifiable only by their tendency to protect the public peace, and preserve public decency, good order, and good morals, objects for which civil society exists.”
Judge Cooley, in his “ Constitutional Limitations” (p. 471), observes
"Some acts, would be offensive to public sentiment in a Christian community, and would tend to public disorder, which, in a Mohammedan or Pagan country, might be passed without notice, or be regarded as meritorious. The criminal laws of every country have reference in a great degree to the prevailing public sentiment, and punish those acts as crimes which disturb the peace and order or tend to shock the moral sense of the community. The moral sense is measurably regulated and controlled by the religious belief ; and therefore it is that those things which, estimated by a Christian standard, are profane and blasphemous, are properly punished as offenses, since they are offensive in the highest degree to the general public sense, and have a direct tendency to undermine the moral support of the laws and corrupt the community.”