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CHAPTER THE TWENTY-EIGHTH.
OF DISTURBANCES IN PLACES OF PUBLIC WORSHIP.
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. (6)
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. 5 & 6 Edw.6. 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. Han
i “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 c 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 a church or
- in any church or church-yard, then ipso facto every person so church-yard. « offending shall be deemed excoinmunicate, 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.
“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 animæ. (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. (g) But church-wardens, or perhaps private persons, who whip 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. (h)
The statute 1 Mary, sess. 2. c. 3. enacts, “that if any person or 1 M. sess. 2.c. “persons, of their own power and authority, do and shall willingly :
Y turbances “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 se “ 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, pre“paring, 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.
“ 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. (i)
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 impliedly 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 18. Disturb- purpose of exempting Protestants dissenting from the church of ing dissenting
ons. England from the penalties of certain laws therein mentioned,
(0) i Mar. sess. 2. c. 3. s. 2, 3, 4, 5, 6. (1) 1 Hawk. P. C. c. 63. s. 31. Gibs.
(0) Id. Ibid. And see ante, 51.
ip) 50 Edw. 3. c. 5. TR. 2. c. 15. But the arrest notwithstanding, if not on a Sunday, is good in law. Wats, c. 34. 5 Buro. Just. Public Worship, p. 111.
(1) S. 7,
enacts, “ That if any person or persons shall, willingly and of pur“pose, maliciously or contemptuously, come into any cathedral or “ parish church, chapel, or other congregation permitted by this “act, and disquiet or disturb the same, or misuse any preacher or “ teacher; such person or persons, upon proof thereof before any “justice of peace, by two or more sufficient witnesses, shall find “ two sureties to be bound by recognizance in the penal sum of “ fifty pounds; and in default of such sureties shall be committed “ to prison, there to remain till the next general or quarter ses“sions; and upon conviction of the said offence at the said general “ or quarter sessions, shall suffer the pain and penalty of twenty “ pounds,” to the use of the king.
Before this statute the court of King's Bench refused to grant a certiorari to remove an indictment at the sessions against a person not behaving himself modestly and reverently at the church during divine service; for, although the offence was punishable by ecclesiastical censures, the court considered it properly to come within the cognizance of the justices of the peace. (9) An indictment upon the statute, found at the quarter sessions, may be removed by certiorari before verdict, notwithstanding the words of the statute, which seem at the first view to confine the cognizance of the offence to the justices in the first instance, and in the next to the quarter sessions. (r)
The oaths taken by a preacher under this act are matter of Points derecord, and cannot be proved by parol evidence : but it is not ne- cided upon cessary, upon an indictment for disturbing a dissenting congregation, to prove that the minister has taken the oaths. (s) It is no defence to such an indictment that the defendant committed the outrage for the purpose of asserting his right to the situation of clerk. (t) And it has been held that a congregation of foreign Lutherans, conducting the service of their chapel in the German language, are within the protection of the statute. (u) Upon the conviction of several defendants, each of them is liable to a penalty of twenty pounds. (W)
A late statute makes further provision for the punishment of 52 Geo. 3. c. persons disturbing religious assemblies; and enacts, “ that if any 155. further 5 person or persons do and shall wilfully and maliciously or con
anu wancious y or con against the “ temptuously disquiet or disturb any meeting, assembly, or con- disturbance “gregation of persons assembled for religious worship, permitted of religious “ or authorized by this act, or any former act or acts of Parlia- uss “ment, or shall in any way disturb, molest, or misuse any
preacher, teacher, or person officiating at such meeting, assem“bly, or congregation, or any person or persons there assembled; “such person or persons so offending, upon proof thereof before “ any justice of the peace by two or more credible witnesses, shall “ find two sureties to be bound by recognizances in the penal sum “ of fifty pounds to answer for such offence; and in default of “ such sureties shall be committed to prison, there to remain till “ the next general or quarter sessions; and upon conviction of the
(g) Rex v. — , 1 Keb. 491, 5 Burn. (1) Id. Ibid. Just. Public Worship, p. 111.
(u) Id. Ibid. (r) Rex v. Hube, 5 T. R. 542.
(w) Rex v. Hube, 5 T. R. 542. (8) Rex v. Hube, Peake R. 131.
" said offence at the said general or quarter sessions shall suffer “ the pain and penalty of forty pounds.” (x) A subsequent section of the statute provides that nothing contained in the act shall extend to Quakers, nor to any meetings or assemblies for religious
worship held or convened by them. (y) Certiorari. It has been holden upon this statute, in conformity to the deci
sion which has been mentioned upon the 1 W. and M. c. 18. (2) that an indictment found at the quarter sessions may be removed
into the court of King's Bench by certiorari before trial. (a) 31 Geo. 3. c. A similar provision to that contained in the 1 W. and M. c. 18. 32. disturbing s. 18. (b) relating to Protestant dissenters, is enacted in the 31 Geo.
3. c. 32. s. 10. with respect to Roman Catholic congregations, or tholic congregations. assemblies of religious worship permitted by the latter statute. Conspiracies The facts attending disturbances of religious assemblies may or riots. sometimes authorize proceedings at common law for a conspiracy
or a riot :(c) and we have seen that by the enactment of a statute
(6) Ante, 280.
(c) See Preced. 2 Chit. Crim. L. 29. (z) Rex v. Hube, ante, 281.
(d) Ante, 251. (a) Rex v. Wadley, 4 M and S.508.