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Of words of It has been considered that mere words of provocation, as provocation.

“ liar” and “knave,” though motives and mediate provocation for a breach of the peace, yet do not tend immediately to the breach of the peace, like a challenge to fight, or a threatening to beat another. (f) But words which directly tend to a breach of the peace may be indictable; as if one man challenges another by words; (g) and if it can be proved that the words used were intended to provoke the party, to whom they were addressed, to give a challenge, the case would seem to fall within the same

rule. (1) 9 Ann. c. 14.

With respect to challenges given on account of money won by 8. 8. challenges on account of gaming, it is enacted by 9 Ann. c. 14. s. 8. that whoever shaii money won by challenge or provoke to fight any other person or persons whatgaming.

soever upon account of any money won by gaming, playing, or betting, at any of the games mentioned in the act, (i) shall, upon conviction by indictment or information, forfeit all their goods, chattels, and personal estate, and suffer imprisonment without

bail, in the county prison, for two years. The venue may

In a case where a person wrote a letter with intent to provoke a ty in which the challenge, sealed it up, and put it into the twopeuny post-office in challenge is put a street in Westminster, addressed to the prosecutor in the city of into the post- London, by whom it was there received; Lord Ellenborough, Č.J.

held that the defendant might be indicted in Middlesex, as there was a sufficient publication in that county by putting the letter into the post-office there, with the intent that it should be delivered to the prosecutor elsewhere; and that if the letter had never been delivered, the defendant's offence would have been

the same. (K) Of proceeding by criminal

It may be observed, before this subject is concluded, that sendinformation.

ing a challenge is an offence for which the court of King's Bench will grant a criminal information : but in a case where it appeared, upon the affidavits, that the party applying for an information had himself given the first challenge, the court refused to proceed against the other party by way of information; and left the prosecutor to his ordinary remedy by action or indictment. (1) A rule to shew cause why such an information should not be granted has been made, upon producing copies only of the letters in which the challenge was contained, such copies being sufficiently

verified. (m) Punishment.

The punishment for this offence, as a misdemeanor, is discretionary, and must be guided by such circumstances of aggravation or mitigation as are to be found in each particular case. (n) (f) King's case, 4 Inst. 181.

(1) Rex v. Hankey, i Burr. 316. (g) Regin. v. Langley, 6 Mod. 125. where it is said that the court held S. C. 2 Lord laym. 1031.

that it might have been right to bave (h) The rule given in 3 Inst. 158. granted cross informalions, in case is-Quando aliquid prohibetur, prohi- each party had applied for an inbelur et omne per quod devenitur ad formation against the other. illud.

(m) Rex v. Chappel, i Burr. 402. (i) In the first section of the act, the (11) Rex v. Rice, 3 East. 584. in words are

cards, dice, tables, tennis, which case the defendant (though he “ bowls, or other game or games what had undergone some imprisonment, “ soever.”

and though there were several cir(k) Rex v. Williams, 2 Campb. 506. cumstances tending inaterially to miti

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gate his offence,) was sentenced to pay duelling, says,

upon which consia fine of 1001. and to be imprisoned “ derations persons convicted of barely for one calendar month, and at the sending a challenge have been adexpiration of that time to give secu- judged to pay a fine of 1001. and rity to keep the peace for three years, "to be imprisoned for one month bimself in 1000i. and two sureties in “ without bail, and also to make a 2501, each, and to be further impri- “public acknowledgment of their ofsoned till such fine was paid and such “ fence, and to be bound to their securities given. Hawkins, speaking good behaviour.” I Hawk. P. C. of the pernicious consequences of c. 63. s. 21.

278

CHAPTER THE TWENTY-EIGHTH.

OF DISTURBANCES IN PLACES OF PUBLIC WORSHIP.

5 & 6 Edw. 6.

It has been already stated that affrays in a church or churchyard have always been esteemed very

heinous offences, as being very great indignities to the Divine Majesty, to whose worship and service such places are immediately dedicated; (a) and upon this consideration all irreverent behaviour in these places has been esteemed criminal by the makers of our laws. So that many

disturbances occurring in these places are visited with punishment which, if they happened elsewhere, would not be punishable at all; as bare quarrelsome words: and some acts are criminal, which would be commendable if done in another place; as arrests by virtue of legal process. (b)

Several statutes have been passed for the purpose of preventing disturbances in places of worship belonging to the established church, and also in those belonging to congregations of Protestant Dissenters and Roman Catholics. The 5 & 6 Edw. 6. c. 4. enacts,

" that if

any person whatsoever c. 4. as to quar- “shall, by words only, quarrel, chide, or brawl, in any church or relling, chid.

church-yard, that then it shall be lawful unto the ordinary of ing, or brawling in a church the place where the offence shall be done, and proved by two or church

“ lawful witnesses, to suspend every person so offending; that is yard.

“ to say, if he be a layman, ab ingressu ecclesiæ, and if he be a “ clerk, from the ministration of his office, for so long time as the " said ordinary shall by his discretion think meet and convenient,

“ according to the fault.” S. 2. Smiting By the second section of the same statute, “if any person or or laying vio

persons shall smite or lay violent hands upon any other, either lent hands in church or

“ in any church or church-yard, then ipso facto every person so church-yard. “ offending shall be deemed excommunicate, and be excluded from

“ the fellowship and company of Christ's congregation.” S. 3. Striking

And the third section enacts, “ That if any person shall maliwith a weapon

ciously strike any person with any weapon in any church or in a church or

“ church-yard, or shall draw any weapon in any church or churchchurch-yard, or drawing

yard, to the intent to strike another with the same weapon, that one with in “ then every person so offending, and thereof being convicted, by tent to strike.

“ verdict of twelve men, or by his own confession, or by two law“ ful witnesses, before the justices of assize, justices of oyer and “ terminer, or justices of peace in their sessions, by force of this (a) Ante, 271.

(6) 1 Hawk. P. C. c. 63. s. 23.

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act, shall be adjudged by the same justices before whom such person

shall be convicted to have one of his ears cut off :" then after providing for the offender being branded, in case he shall have no ears, it concludes, “and besides that every such person to “ be and stand ipso facto excommunicated as is aforesaid.'

In the construction of this statute it has been held that the Construction ecclesiastical court may proceed upon the two first sections, and is of the statute. not to be prohibited; for though the offence mentioned in the second section of smiting in the church or church-yard is still an offence at common law, and the offender may be indicted for it; yet besides this, he may, by the act, be ipso facto excommunicated. (c) No previous conviction is necessary in this case ; though, if there be one, the ordinary may use it as proof of the fact. But before the ecclesiastical court can proceed for the offence, in the third section, of maliciously striking, &c. there must be a previous conviction, and a transmission of the sentence to the ordinary. (d) Indeed, if the ecclesiastical court proceeds for damages on either clause, the court of King's Bench will prohibit them; for the proceedings of the ecclesiastical court are pro salute anime. (e)

Cathedral churches, and the church-yards which belong to them, are within the statute. (f) And it has been held that it will be no excuse for a person who strikes another in a church, &c. to shew that the other assaulted him. (8) But church-wardens, or perhaps private persons, who wbip boys for playing in the church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands on those who disturb the performance of any part of divine service, and turn them out of the church, are not within the meaning of the statute. (1)

The statute 1 Mary, sess. 2. c. 3. enacts," that if any person or · M. sess. 2.c.

persons, of their own power and authority, do and shall willingly 3. as to dis“and of purpose, by open and overt word, fact, act, or deed, mali- during the “ciously or contemptuously molest, let, disturb, vex, or trouble, time of divine

or by any other unlawful ways or means disquiet or misuse, any “ preacher or preachers, licensed, allowed, or authorized, to preach “ by the Queen's highness, or by any archbishop or bishop of this “realm, or by any other lawful ordinary, or by any of the univer“ sities of Oxford and Cambridge, or otherwise lawfully authorized

or charged by reason of his or their cure, benefice, or other spi. “ ritual promotion or charge, in any of his or their open sermon, “ preaching, or collation, that he or they shall make, declare,

preach, or prononnce, in any church, chapel, church-yard, or in

any other place or places, used, frequented, or appointed, or that “ hereafter shall be used or appointed to be preached in; or if any

person or persons shall maliciously, willingly, or of purpose, “ molest, let, disturb, vex, disquiet, or otherwise trouble, any par

son, vicar, parish-priest, or curate, or any lawful priest, preparing, saying, doing, singing, ministering, or celebrating, the (c) Wilson, Clerk, v. Greaves, 1 C. J. in the same case, “We proceed Burr. 240.

"to punish, they to amend." (d) Id. Ibid.

(f) Dethick's case, I Leon. 248. (e) Wilson, Clerk, 'v. Greaves, 1 (g) i Hawk. P. C. c. 63. s. 28. Burr. 240. And by Lord Mansfield, (h) Id. Ibid. s. 29.

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service.

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mass, or other such divine service, sacraments or sacramentals,

as was most commonly frequented and used in the last year of “ the reign of the late sovereign lord king Henry the eighth, or “ that at any time hereafter shall be allowed, set forth, or autho“ rized, by the Queen's majesty; or if any person or persons shall “ unlawfully, contemptuously, or maliciously, of their own power

or authority, pull down, deface, spoil, or otherwise break, any “altar or altars, or any crucifix or cross, in any church, chapel, or “ church-yard,” every such offender, his aiders, procurers, or abettors, may be apprehended by any constable or churchwarden of the place where such offence shall be committed, or by any other officer or person then being present at the time of the said offence, and being so apprehended, shall be brought before some justice of peace, by whom he shall upon due accusation be committed forthwith; and within six days next after the accusation the said justice with one other justice shall diligently examine the offence; and if the two justices find the person guilty, by proof of two witnesses, or confession, they shall commit him to gaol for three months, and further to the quarter sessions next after the end of the three months; at which sessions he is upon repentance to be discharged, finding surety for his good behaviour for a year; and if he will not repent, he is to be further committed till he does. (*)

It has been resolved, that the disturbance of a minister in saying the present common prayer is within this statute; for the express mention of such divine service as should be afterwards authorized by queen Mary inpliedly includes such service also as should be authorized by her successors, upon the principle that as the king never dies, a prerogative given generally to one goes of course to

others. (k) Rescuing of The statute further provides, that persons rescuing offenders so fenders, or

apprehended as aforesaid, or hindering the arrest of offenders, shall hindering their arrest.

suffer like imprisonment, and pay a fine of five pounds for each Escape of offence. (?) And if any offenders be not apprehended, but escape, offenders. the escape is to be presented at the quarter sessions, and the inha

bitants of the parish where the escape was suffered are to forfeit five pounds. (m)

Precedents are to be met with of indictments for breaking the windows of a church, by firing a gun against them : (n) but it has been doubted whether such an indictment is sustainable, as being for a mere trespass. (0)

The arrest of a clergyman in any church or church-yard, while attending to divine service, makes the offender liable to imprisonment and ransom at the king's will, and gree to the party ar

rested. (p) I W. and M. c. The statute 1 W. and M. c. 18. s. 18., which was passed for the

purpose of exempting Protestants dissenting from the church of ing dissenting congregations. England from the penalties of certain laws therein mentioned,

(0) 1 Mar. sess. 2. c. 3. s. 2, 3, 4, 5, 6. (0) Id. Ibid. And see ante, 51.

(k) i Hawk. P. C. c. 63. s. 31. Gibs. (p) 50 Edw. 3. c. 5. TR. 2. c. 15. 372.

But the arrest notwithstanding, if not (1) S. 7.

on a Sunday, is good in law. Wals. c. (m) S. 8.

34. 5 Burn. Just. Public Worship, p. (n) 2 Cbit. Crim. L. 23.

111.

18. Disturb

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