LEGAL COBWEBS
By R. II. CECIL
CURSING and swearing are to remain criminal. In July the Attorney-General invited Parliament to reconsider the Profane Oaths Act, 1745, which says that "if any person shall profanely curse or swear" he will expose himself to the following graduated risks:
"Every day labourer, common soldier, common sailor, and common seaman, one shilling ; evay other person under the degree of a gentleman, two shillings ; and every person of or above the degree of a gentleman, five shillings."
Two shillings a cuss for most 9f us. In 1864 the Judges of the High Court decided that a conviction may include any number of oaths uttered on the same day, and that a non-gentleman using twenty two-shilling- expletives in dealing with one episode must pay L2 for the lot (R. v Scott, 27 J.P.420), no reduction being con-
templated for poverty of invention. The terminology of the Act has always been considered to exclude women, not because their state was held to justify unfettered profanity but because they must not be understood to swear at all ; though since 1889 there has been danger for them in the slightly discourteous provision of the Interpretation Act that "words importing the masculine gender shall include females." Still, they wanted emancipation.
From time to time this kind of thing receives the attention of a Statute Law Revision Committee, whose job it is to dig out obsolete Acts of Parliament, make them up into enormous chrono- logical lists and show them to the Attorney-General. He then introduces a Statute Law Revision Bill, and in a jocular little speech to the House commends them for death or mutilation. The Bill passed at the close of the last session, having said that "the enact- ments described in the First Schedule to this Act are hereby repealed," devotes 130 pages to the arraignment of 771 obsolete
Statutes, from an Act of 1235 enabling widows to bequeath the corn on their lands to an Act of 1799 for the transportation of Freemasons.
Among them was the Profane Oaths Act.
But there was no proposal to repeal this. It was considered merely that Parliament might now think it gracious to stop sending policemen to the "house of correction" for a month whenever they failed to arrest cursers and swearers. The new police have been very tolerant about swearing, suppressing it only when it seemed to them likely, in the light of contemporary philology, to cause a breach of the peace. There are writers on constitutional law who hold that the discretion of the police to overlook offences is part of the British Constitution. But in relation to bad language the police have run a perpetual risk, under a special provision of this 1745 censorship, that they might themselves be fined forty shillings for their neglect (the money to go to the poor of the parish), or in default either deprived of some furniture or sent to the work- house. Forty shillings has long failed to frighten the constable, and the English tongue has in consequence grown steadily richer. But since he may still, at any time, be brought before the Magistrates on the complaint of "one or more credible witnesses" that he has turned a deaf ear to some anguished burst of rhetoric, it was neces- sary to provide that his penitential month should be spent in prison, not in the workhouse. This is among the 771 reforms achieved by the Statute Law Revision Act, 1948. -
It is a recognised principle in law that, when an antique Statute has been recently amended, it has thereby gathered new strength. Parliament has taken it out and looked at it ; its new form must, accordingly, be understood to set forth the present intention of the law-makers. Those whose habit it has been to express themselves coarsely are invited, therefore, to reconsider their position. The 1745 Act grants no exemptions, no dispensation, commits itself to no definitions. It requires merely that the cursing or swearing, to be criminal, be done "profanely," by which it must be supposed to confer legality on sacred cursing and swearing, i.e., on excommunica- tion or other anathema by the Church and on statutory oaths taken with the Testament uplifted or the finger on the little red seal. It does not even define "gentleman" for the purposes of the dearer language ; in 1745 this would have been a matter of armorial bearings, but the monetary danger should be faced that today it may have come to mean one who ought to know better.
As if to emphasise, by comparison, its determination that freedom of speech shall still be a hazard rather than the right which English- men proudly suppose it to be, Parliament has in this mighty Act repealed many Statutes outright. It sweeps away Henry VIII's " Acte for the Dissolution of the Pretensed Manage with the Lady Anne of Cleves," and the same Monarch's " Acte charging the Busshopp of Norwich with the Tenthez." It does the same with Bloody Mary's " Acte for declaring the Quene's Hyghness to have been borne in a most just and lawfull Matrimonie," and (impartially) with the Jacobean " Acte for a most joyfull and juste Recognition of the immediate lawfull and undoubted Succession, Descent, and Righte of the Crowne." It gives the coup de grace to a lingering Act of William III designed "To enlarge the Trade to Russia," and to one of George III "For vesting in James Watt, Engineer, the Sole Use and Property of certain Steam Engines of his Invention, for a limited Time." With the recorded consent of the Metropolitan Water Board, it repeals James I's " Acte for the Bringing of Fresh Streemes of Water by Engine from Hackney Marsh to the Cittie of London for the Benefit of the Kinge's Colledge at Chelsey " ; and, with the blessing of the Min. of Ag. and Fish., it disposes of an Elizabethan provision "For the Preservacion of Spawne and Frye of Fyshe."
But it did not ask M.P.s to repeal the Suppression of Unlawful Games Act, 1541; they were asked only to agree that it need no longer recite, in relation to the nefarious pursuits of cricket, dicing, and carding, that "by reason therof Archerie ys sore decayed." It could have proposed the repeal of the Sunday Observance Act, 1625, which punishes all Sunday migrations from one parish to another to indulge in sports and pastimes. Instead, it asked that these Sabbath-breakers should no longer be liable to be "set in the stocks for the space of three hours " ; not, it may be supposed, because inter-parish Sunday cricket is now to be encouraged, but because the few stocks we still possess are all in the museums. It made the same modest proposal in relation to tradesmen, artificers and workmen who violate a similar Act of 1677 by "doing or exercising any worldly labour, business, or work of their ordinary calling upon the Lord's Day."
Yes, I know—one mustn't grumble at the Statute Law Revision Committee, whose only Mandate is to drag the cobwebs away from the law as it stands, not to try setting the country free by wholesale bull-dozing among Statutes that Parliament has forgotten. And no doubt it may stimulate reformative interest among M.P.s merely by bringing these rusty shackles out for them to look at. But what beneficent work could be done by such a committee—composed, perhaps, of legal members of the House of Lords—if it were authorised to propose genuine reforms! As it is, by dragging out the Witchcraft Act of 1735 and asking Parliament merely to scrap "in sections three and four the words of commencement," it leaves the whole scope of the Act untouched. Thus, inferentially, it reinforces the solemn dictum of Chief Justice Hale that "there must be such things as witches, since there are laws against witches and it is not conceivable that laws should be made against that which does not exist."
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