Fines and Penalties

Swearing has traditionally been regarded as an act that is irreligious, antisocial, or personally provocative, and thus deemed worthy of some legal punishment. Punishments are extremely severe in the Hebrew Bible, even including stoning, but the offense is more leniently viewed, as are all human failings, in the New Testament. Within the English tradition, the historical span of fines is enormous, extending from Anglo-Saxon times down to the eighteenth century, when the legislation lapsed. In the United States, the First Amendment to the Constitution obviously protects free speech, but it equally makes provision for fining for the broadcasting of obscenities.

In the past, when there were both ecclesiastical and temporal courts, the grounds for penalties were different. The great legal authority Sir William Blackstone, in his Commentaries on the Laws of England (1765–1769), makes a series of valuable distinctions on this point:

Gross impieties and general immoralities are taken note of and punished by our municipal law … the spiritual court punishing all sinful enormities for the sake of reforming the sinner, pro salutate animae [for the sake of his soul]; while the temporal courts resent the public affront to religion and morality on which all governments must depend for support, and correct more for the sake of example than private amendment.

The fourth species of offences, therefore, more immediately against God and religion, is that of blasphemy against the Almighty by denying his being or providence; or by contumelious [contemptuous] reproaches of our Saviour Christ. Whither also may be referred all profane scoffing [ridicule] at the holy scripture, or exposing it to contempt or ridicule. These are offences publishable at common law by fine and imprisonment, or other infamous corporal punishment; for Christianity is part of the laws of England. (Book IV)

Blackstone’s incisive analysis makes the important distinction that swearing, under which profanity is generally subsumed, is a common-law offense, whereas blasphemy is a crime. It also underlines the important difference between Britain and the United States: the Christian religion has traditionally been regarded as part of the legal foundation of the British system, whereas the Constitution of the United States specifies that there shall be no state religion, the phrase “under God” being used mainly out of deference to the Almighty. Consequently, offenses such as profanity and blasphemy have always attracted more attention and punishment in Britain than in America.

Blackstone’s assumption of a Christian foundation also highlights a major difference between his time and the present. Swearing per se is a problematic offense in the modern world, since in a secularized society the justice of punishment is as dubious as its efficacy. (The offense of blasphemy was abolished by the British Parliament in 1989.) Taking into account inflation and the cost of living, fines have become less severe over time. In modern times the offense is usually dealt with under other legal categories, such as libel or the South African category of crimen injuria , that is, an act of personal insult so outrageous that it constitutes a legal offense.

The earliest instance of fines occurs in the laws of the Anglo-Saxon kings Hlothhere and Eadric (673-685?), no. 11:

If anyone in another’s house calls a man a perjurer, or shamefully accosts him with insulting words, he is to pay a shilling to him who owns the house, and six shillings to him to whom he spoke that word, and to pay twelve shillings to the king.

This law clearly reflects the seriousness with which verbal utterance was regarded in Anglo-Saxon society. Furthermore, the category of “insulting words” is put on a par with perjury. The fines are heavy and on a hierarchical scale: the punishment, incidentally, is the same as that for stealing a cup. A revealing constraint from the Laws of Alfred (900) is contained in the injunction: “Do not ever swear by the heathen gods.” This was some three hundred years after Christianity was first brought to England, but certainly implies the existence of pagan swearing. In the North of England and Scotland, the penalties were far more severe, which suggests that the abuse was widespread: under the statutes of Donald VI and Kenneth II (died 995), the punishment for swearers was cutting out the tongue.

William the Conqueror seems not to have introduced any specific penalties for swearing. However, according to Alexander Howell’s work A Sword Against Sinners , published in 1611, the Conqueror’s son Henry I (1068–1135) is said to have instituted the following hierarchical scale of fines for swearing in the precincts of the royal residence: a duke, 40 shillings; a lord, 20 shillings; a squire, 10 shillings; a yeoman, 3s. 4d.; a page, a whipping. In the fourteenth century, when swearing and blasphemy were common, many tracts appeared advocating extreme measures. One of these was the Summa Praedicantium (1323–1350) by John Bromyard, an English Dominican who proposed special penalties such as those decreed by St. Louis of France, “who ordered such [offenders] to be branded upon the face with a hot iron for a perpetual memorial of their crime” (in Montagu 1973, 111).

In 1551, in the reign of Queen Mary, the Scottish Parliament enacted a rigorous ordinance:

In detestatioun of the grevous abominabill aithis [oaths], sweiring, execrationnis and blasphematioun of the name of God [which are then variously listed]…. It is statute and ordanit that quhatsumevir [whatever] persoun or persouns sweiris sic [such] abominabill aithis and detestabill execrationnis as is afoir rehersit sall incur the panis [penalties] efter following…. That is to say ane Prelate of Kirk [Church], Erle or Lord, for everie fault to be committit for the space of thre monethis nixt tocum. That is to say unto the first day of Maij exclusive xij.d. [twelve pence or a shilling]. Ane Barrone or benefecit man constitute in dignite ecclesisatick iiij.d. Ane landit man, frehalder, wassal, fewar Burges and small benefecit men .ijd. Ane craftsman, yeoman, a seward man and all uthers .j.d.

(from The Acts of the Parliament of Scotland, 1442–1567. London, 1814, II, 485.)

Poor people unable to pay such a fine were to be put in the stocks or in prison for four hours. For a repeat offense, the fine was doubled. The system of fining was extended so that heads of families were empowered to levy fines on their servants and relations, and were authorized to keep a collection box. The Act makes a chilling correlation between the excesses of swearing and divine punishment in the form of current famine. It lists

ugsume aithis [fearful oaths] and execratiounis agains the command of God that the famin is cum in sic ane ungodlie use amangis the pepill of this Realme baith of greit and small Estatis [both high and low] that daylie and hourlie may be hard amangis thame oppin blasphematioun [open blasphemy] of Godis maiestie to the grete contemptioun thairof and bringing of the Ire and wraith [wrath] of God upone the pepill heirfoir.

In England, by contrast, there was greater tolerance for swearing. In 1601 a bill “against usual and common swering” was introduced in the House of Commons, but failed after the first reading. There is some speculation that Queen Elizabeth, a robust swearer herself, would not have signed the bill into law. It was certainly not the kind of constraint that the Elizabethan nobility would have easily accepted. Upon the accession of King James VI of Scotland as James I of England in 1603, no attempt was made to introduce the draconian measures of the Scottish Parliament. However, the Puritans were able to press through a significant piece of legislation, the Act of 1606, making it an offense for any person in an interlude, pageant or stage play to use jestingly or profanely the name “of God, or of Christ Jesus, or the Holy Ghost or of the Trinity” (3 Jac. I. c. 21). The consequence of this legislation was the emergence and rapid growth of minced oaths, such as zounds for “God’s wounds” and snails for “God’s nails.”

The severity of punishment for swearing in Scotland was further increased by the Act of 1609 (103. Parl.7.Jam.6):

Against Cursing and Swearing, and not delating, or neglect to Prosecute the same, Abominabill Oaths, and detestable Execrations, particularly Swearing in vaine by God’s Blood, Body, Pas- sions and Wounds; saying Devile Stick, Gore, Rost, or Rieve them; and other such Execrations; are punished as in Act 16. Parl. 5 Q. M. [the Act of 1551, previously quoted] which is ratified: The Penalties Augmented: And Censors appointed in the Mercat [market] places of the Burrows [boroughs], and other publick Fairs, with powers to put the delinquents in ward [detention] till Payment, and Surety for abstaining in time coming: And that by Direction and Commission of the Judges Ordinary. And that all House-Holders Delate [report] Transgressors within their Houses, under pains of being punished as offenders themselves. And if the Majistrates be remiss [lax], they shall be called before the Council, Committed to ward during pleasure, and fined surety for exact diligence thereafter. [The offending phrases “Devile Stick, Gore, Rost, or Rieve them,” which have long passed out of general currency, mean in effect, “May the Devil impale, stab, roast or tear them.”]

In England it was only near the end of King James’s reign, in 1623, that Parliament passed a significant act against swearing. Although it lacked details of the offense, it was simple, unequivocal and egalitarian:

For as much as all profane Swearing and Cursing is forbidden by the Word of GOD, be it therefore enacted, by the Authority of the then Parliament, that no Person or Persons should from henceforth profanely Swear and Curse, upon the Penalty of forfeiting one Shilling to the use of the Poor for every Oath or Curse.

If any refuse to pay, upon Conviction, the Money is to be levied by Distress [legal seizure]. And in defeet [failure] of Distress, the Offender is to be set in the Stocks if above twelve years old, if under that Age he is to be whip’d by the Constable, or by the Parent, or Master if present.

The Act was continued and ratified by the succeeding Parliament of Charles I in 1627 (3 Chas. I. c. 4) and again, near the end of his reign in 1640.

As the entry for the Renaissance shows, Puritan attacks on the stage became more frequent from the 1580s. One of the most outspoken was William Prynne in his Histriomastix (1633), which meant “the beater of actors.” When Prynne overstepped the boundaries in criticizing the monarchy, he was sentenced to the gruesome punishment meted out to seditious libelers, to have his ears cut off in the pillory and to be imprisoned for life. Archbishop William Laud continued to prosecute him and had his book burned publicly. While imprisoned in the Tower of London Prynne continued to write and was further mutilated by having the letters S L (for Seditious Libeller) branded on his cheeks. With grim humor Prynne maintained that the letters stood for Stigmata Laudis , “the wounds of Laud.”

When the Civil War broke out in 1642, the Puritan armies took the field under Oliver Cromwell against the corruptions of religion as they saw them, including “prophaneness.” Cromwell claimed: “Not a man swears but pays his twelve pence.” There was a notable case of a quartermaster Boutholmey, found guilty by a council of war for uttering impious expressions. He was condemned to have his tongue bored with a red-hot iron and his sword broken over his head, and was ignominiously dismissed from the service. The interpretation of swearing was likewise extremely severe: there were cases of men found guilty for exclamations such as “Upon my life” and “On my troth” (Montagu 1967, 167). On September 2, 1642, the Puritans used an argument similar to that of the Scottish Parliament of 1551, claiming that the parlous state of the nation was the judgment of God. They went further:

It is therefore thought fit and ordeined by the Lords and Commons in this Parliament Assembled, that while these sad Causes and set times for Humiliation doe continue, publicke Stage-playes shall cease, and be forebourne [forbidden].

This ban or closing of the theaters continued throughout the Puritan Commonwealth, being lifted in 1660 when the monarchy was restored to power in the form of Charles II. In 1694, An Act for the More Effectual Suppressing of Profane Cursing and Swearing brought back social gradation in punishment:

every Servant, Day Labourer, common soldier, and common seaman, is, for every offence, to pay one Shilling. Every other Person to pay two Shillings. And, if after Conviction, such Persons offend a second Time, they are to pay double. And if a third time, treble to what was paid for the first Offence.

The Money to be levied by Distress [legal seizure]. And in defect of Distress, the Offender is to be set in the stocks if above sixteen. If under that Age to be whip’d by the Constable, or by the Parent, Guardian, or Master of such Offender in the presence of the Constable.

Magistrates that wilfully and willingly omit their Duty in the Execution of this Act, are to forfeit five Pounds; the one Moiety [half] to the use of the Informer….

This Act is appointed to be read in Churches four times every Year, immediately after Morning Prayer.

(Act 6 and 7 William III. c. 2.)

The most stringent of the statutes against “the offence of profane and common swearing and cursing” was the Act of 1745 in the reign of George II. In his Commentaries Sir William Blackstone rehearsed the law, which basically followed the framework of the Act of 1694, keeping the “base rate” at one shilling for common people but raised the schedule of fines to five shillings for those of superior rank and penalized defaulters with ten days in a house of correction. Magistrates omitting their duty were to be fined £5, as were those responsible for reading out the Act in Church. An interesting resuscitation was the theater statute of 1606, “that if in any stage-play, interlude, or show, the name of the Holy Trinity, or any of the persons therein, be jestingly or profanely used, the offender shall forfeit £10, one moeity [half] to the king, and the other to the informer.” Since Blackstone’s time most of the legal measures concerning swearing have fallen into abeyance in the United Kingdom, but obscenity has become the major focus of penalties.

In the United States under the laws of the Puritan Commonwealths of Colonial America, profanity was punishable as blasphemy. Since then swearing has technically been a legal offense in every state, but in view of the First Amendment of the Constitution, it has been enforced only on special occasions—for instance, against the protesters against the Vietnam War. However, broadcasting forms a special case, and under Section 1464 of the U.S. Criminal Code (18 U.S.C. Section 1464) it is determined that “Whoever utters any obscene,

indecent or profane language, by means of radio communication shall be fined not more than $10,000, or imprisoned not more than two years, or both.” This has been the area of considerable legal dispute.