1 Add. Rep. 96; and in Canning v. Sawkins, 2 Phil. Ecc. Ca. 293, for brawling in a chancel, to three weeks, with notification in the church of such suspension, and costs in both. And in North v. Dickson, 1 Hagg. Rep. 730, provocation was held no defence to a suit for brawling in a church at a vestry meeting. Ibid. This being a criminal proceeding, the office of the judge wrongly promoted, by misnomer of the judge in a copy of the articles for this offence, is fatal. Williams v. Bott, 1 Hagg. 1; Thorp v. Mansell, Ib. 4.

Punishable by Justices.] The 1 M. sess. 2, c. 3, s. 2, and 1 W. & M. c. 18, s. 18, provide, that persons who wilfully and maliciously disturb any minister, or the congregation, during divine service, may be apprehended by the constable, churchwarden, or any other person present, and taken before a magistrate, who may punish the offender; and the offender, upon conviction at the next quarter sessions, shall suffer the penalty of 40l. 52 Geo. 3, c. 155, s. 12. See R. v. Wadley, 4 M. & Sel. 508. All laws in force against wilfully, &c. disturbing congregations, &c. are extended to all meetings, assemblies or congregations of persons lawfully assembled for religious worship, and the preachers and persons there assembled. 9 & 10 Vict. c. 59, s. 4. See R. v. Hube, 5 T. R. 542. But where the parish clerk refused to read in church a notice respecting parish affairs, which was presented to him for that purpose, and the person presenting it read it himself, when no part of the service was actually going on, it was held, that though a constable might be justified in removing him from the church, and detaining him till the service was over, yet he could not legally detain him afterwards, in order to take him before a magistrate, as the object of the person did not appear to be maliciously to disturb the congregation, or misuse the preacher. Williams v. Glenister, 2 B. & C. 699.

Striking in Church.] By the 5 & 6 Edw. 6, c. 4, s. 2, if any person smite or lay violent hands in any church or churchyard (which includes cathedrals, Dethick's case, Cro. Eliz. 224; 1 Leon. 248), then, ipso facto, the offender shall be deemed excommunicate, and be excluded from the fellowship and company of Christ's congregation. A threatening posture, though an assault at common law, even without a blow, is not held to be smiting within this statute. Jenkins v. Barret, 1 Hagg. Rep., N. S., 15. See Cro. Jac. 367; 1 Hawk. P. C. 139; Ld. Raym. 850; Cory v. Byron, 2 Curt. 400. Churchwardens, or perhaps private persons, who whip boys for playing in the church, or pull off the hats of those who

refuse to take them off themselves, or gently lay hands on those who disturb any part of divine service, and turn them out of the church, are not within the meaning of this statute. 1 Hawk. P. C. 139; Hall v. Plenner, 1 Lev. 196; Sid. 301; 1 Saund. 14; Comb. 17; Com. Dig. "Esglise," F. 2. Though the act says, the offender shall be ipso facto excommunicated, there must be proper proof of the offence in the spiritual court, before excommunication. 1 Hawk. P. C. 139; Dier v. East, 1 Vent. 146; Wilson v. Greaves, 1 Burr. 240; Bilson v. Chapman, Cas. temp. Hardw. 190.

Limitation of Suits.] By statute 27 Geo. 3, c. 44, no suit shall be brought in any ecclesiastical court for striking or brawling in any church or churchyard, after the expiration of eight calendar months from the time that such offence shall have been committed. The ancient privilege of sanctuary was entirely abolished by 21 Jac. 1, c. 28, s. 7.

Robbing a Church.] Robbing a church is burglary, for the church is the mansion-house of Almighty God. 3 Inst. 64. And by the 7 & 8 Geo. 4, c. 29, s. 10, altered by the 5 & 6 Will. 4, c. 81, it is provided, that if any person break and enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel, break out of the same, every such offender, being convicted thereof, is liable to transportation for life or for not less than seven years, or three years' imprisonment. 6 & 7 Will. 4, c. 4.

Burning or destroying Churches, &c.] By 1 Vict. c. 29, s. 3, any person unlawfully and maliciously setting fire to any church or chapel, or to any chapel for the religious worship of persons dissenting from the united Church of England and Ireland, is guilty of felony, and is liable to transportation for life, or not less than fifteen years, or to imprisonment with or without hard labour for not more than three years. Also, the 7 & 8 Geo. 4, c. 30, s. 8, altered by the 4 & 5 Vict. c. 56, s. 2, enacts, that persons riotously assembled, and demolishing or beginning to demolish any place of worship (as above), are guilty of felony, and liable to transportation for not less than seven years, or imprisonment, with or without hard labour, for not more than three years.

Liability of the Hundred.] By 7 & 8 Geo. 4, c. 31, s. 1, if any church or chapel, or any chapel for the religious worship of persons dissenting from the united Church of England and Ireland, shall be feloniously demolished, wholly or in part, by any persons riotously or tumultuously assembled together, the inhabitants of the hundred or district in the nature of a hundred, shall be liable

to compensate the persons damnified by the offence. By sect. 8, where the damage does not exceed 307., the party damnified is not to proceed by action, but shall give a written notice of his claim for compensation, within seven days, to the high constable, who shall exhibit it within seven days to two justices, and they shall, within not less than twenty or more than thirty days, appoint a special petty session for hearing and determining such claim. Every action or claim, by sect. 11, shall be brought in the name of the rector, vicar or curate; or, if there be none, in the names of the church or chapel wardens, or in the name of any person in whom the property of the chapel is vested. The amount recovered is to be applied to rebuilding or repairing.

SECTION VIII.-CHURCHYARDS.

Ancient Burial Places.] It seems to have been the practice of all civilized nations, before the Christian era, to bury their dead at a distance from the temples of their religion, and the places of their habitation. Thus, by the old Roman law, the remains of their deceased fellow citizens were committed to the silent earth beyond the walls of the city, either by the way side, or, in less remote periods, in some peculiar inclosure dedicated to the purpose. The early Christians continued the same custom, and hence the Augustine Monastery was built without the walls of Canterbury (as Ethelbert and Augustine in their charters intimate), that it might be a dormitory to them and their successors, the kings and archbishops, for ever. A similar policy has, as we shall see, been recently adopted by the legislature.

Burying in Churches, &c.] It seems to be well established that at the first erection of churches no part of the adjacent ground was allotted for interment of the dead, but some place for this purpose was appointed at a distance, especially in cities and populous towns. The practice of burying in churches probably existed before the use of churchyards. By one of the early canons, made previously to the reign of Edward the Confessor, entitled De non sepeliendo in ecclesiis, the privilege was restricted to priests and holy men. 1 Burn's Ecc. L. 256. In the age of Gregory the Great, however, the monks and priests, who then began to make a profit of their prayers for departed souls, procured leave that the rights of sepulture might be in churches or places adjoining, by which their income from this source was greatly augmented; and the general practice was introduced from Rome into England about the year 750, by Cuthbert, Archbishop of Canterbury; from which

period churchyards may be dated in this island. In the outset it was the nave or body of the church that became a repository of the dead, and chiefly under arches by the side of the walls. Lanfranc, Archbishop of Canterbury, seems to have been the first to sanction vaults in chancels, and under the very altars, when he had rebuilt the church of Canterbury, about the year 1075. Ken. Par. Ant. 592.

By the 15 Ric. 2, c. 5, it is declared that religious persons, parsons, vicars, and other spiritual persons, have entered in divers lands and tenements which lie adjoining to their churches, and of the same, by sufferance and assent of the tenants, have made churchyards, and, by bulls of the Bishop of Rome, have dedicated and hallowed the same, and in them do make continually parochial burying, without licence of the king and of the chief lords; therefore it is declared in this parliament, that it is manifestly within the 7 Edw. 1, st. 2, prohibiting holding lands in mortmain.

Repair of Churchyards.] By a constitution of Archbishop Winchilsea, the parishioners shall repair the fence of the churchyard at their own charge. Lind. 253. And this they ought to do by custom known and approved, the conusance of which belonged to the Ecclesiastical Court. 2 Inst. 489. But nevertheless, if the owners of lands adjoining to the churchyard have used, time out of mind, to repair so much of the fence thereof as adjoineth to their ground, such custom is a good custom; and the churchwardens may have an action against them at the common law for the same. 2 Roll. Abr. 287; Gibs. 194. For the duty rests upon the churchwardens or questmen to take care that the churchyards be well and sufficiently repaired and fenced, as they have been in each place accustomed, at the charge of those unto whom by law the same appertaineth. Canon 85. Although the statute of Circumspectè agatis (13 Edw. 1, st. 4), intituled "Certain cases wherein the King's Prohibition doth not lie," directs, that if prelates do punish for leaving the churchyard unclosed, the spiritual judge shall have cognizance thereof, notwithstanding the king's prohibition, still, if the churchwardens sue a person in the Court Christian, alleging a custom for him and all those whose estate he hath to repair the fences of the churchyard next adjoining his estate, a prohibition will lie; for this ought to be tried at the common law, inasmuch as this is to charge a temporal inheritance. 2 Roll. Abr. 287. See Com. Dig." Prohibition," G. 3; 13 Rep. 41. By the 59 Geo. 3, c. 134, s. 39, the Church Building Commissioners may alter, repair, pull down and rebuild, or order to be altered, &c., the walls or

fences of any existing churchyard or burial-ground of any parish or chapelry, and fence off any additional or new burial-ground.

Neglect to Repair, indictable.] The duty of repairing the fences of churchyards may also, it appears, be enforced by indictment; as the neglect of it amounts to a misdemeanor. However, where a vicar was indicted for such non-repair, and the indictment alleged that the vicar had been immemorially bound to repair, and that the defendant had neglected to do so, by means whereof cattle broke into the churchyard and injured the tombstones, church porch, &c. to the nuisance of the parishioners, and the defendant was acquitted, the court refused to grant a new trial on the ground of the verdict being against evidence; Lord Ellenborough observing, "It is very clear that you may indict the defendant again, if the fences have continued out of repair since the last indictment." R. v. Reynell, 6 East, 315.

Trees and Herbage.] The right of property in the trees and grass of churchyards was formerly a subject of great contention; but, upon the principle that laymen have no power to dispose of things ecclesiastical, it was determined that the parishioners have no right to cut down trees or mow the grass, against the will of the rectors or vicars, or others deputed by them for the custody or care thereof, though such parishioners may even intend to apply the trees so cut down to the use of the church. And persons

guilty of such contempt incur the sentence of the greater excommunication, until they make sufficient satisfaction and amends. Lind. 267. But if the defendant allege that the trees in dispute grew upon his own freehold, a prohibition lies. Hilliard v. Jefferson, Lord. Raym. 212.

If in the same church there be both rector and vicar, it may be doubted (says Lindwood) to whether of them the trees or grass shall belong; but I suppose they shall belong to the rector, unless in the endowment of the vicarage they shall be otherwise assigned. Lind. 267. And Rolle seems to make the right, as between rector and vicar, to turn upon this, that they belong to him who is bound to repair; which determination agrees well with what is said in the statute, namely, that the parson shall not cut them down, but when the chancel wants reparation. Bellamy's case, 2 Roll. Abr. 337; Gibs. 207.

The 35 Edw. 1, st. 2, intituled Statutum ne Rector prosternat Arbores in Cometerio, which is but a declaration of the common law (11 Rep. 49), is as follows:-"Forasmuch as a churchyard that is dedicated is the soil of a church, and whatsoever is planted