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. (h) In a case where a person wrote a letter with intent to provoke a challenge, sealed it up, and put it into the twopenny post-office in a street in Westminster, addressed to the prosecutor in the city of London, by whom it was there received; Lord Ellenborough, C. 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) It may be observed, before this subject is concluded, that sending 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) 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) (g) Reg. v. Langley, 6 Mod. 125. S. C. 2 Lord Raym. 1031. (h) The rule given in 3 Inst. 158, isQuando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. (k) Rex v. Williams, 2 Campb. 506. (1) Rex v. Hankey, 1 Burr. 316, where it is said that the court held that it might have been right to have granted cross informations, in case each party had applied for an information against the other. (m) Rex v. Chappel, 1 Burr, 402. (n) Rex r. Rice, 3 East, 584, in which case the defendant (though he had undergone some imprisonment, and though there were several circumstances tending materially to mitigate his offence) was sentenced to pay a fine of 100%. and to be imprisoned for one calendar month, and at the expiration of that time to give security to keep the peace for three years, himself in 10001. and two sureties in 2501. each, and to be further imprisoned till such fine was paid and such securities given. Hawkins, speaking of the pernicious consequences of duelling, says, 66 upon which considerations persons convicted of barely sending a challenge have been adjudged to pay a fine of 1002., and to be imprisoned for one month without bail, and also to make a public acknowledgment of their offence, and to be bound to their good behaviour." 1 Hawk. P. C. c. 63, s. 21. CHAPTER THE TWENTY-EIGHTH. OF DISTURBANCES IN PLACES OF PUBLIC WORSHIP. Ir has been already stated that affrays in a church or church-yard 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 5 & 6 Edw. 6, shall, by words only, quarrel, chide, or brawl, in any church or church- c. 4, as to quaryard, that then it shall be lawful unto the ordinary of the place ing, or brawlrelling, chidwhere the offence shall be done, and proved by two lawful wit- ing in a church nesses, to suspend every person so offending; that is to say, if he or church-yard. 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." By the second section of the same statute, " if any person or per- S. 2. Smiting sons shall smite or lay violent hands upon any other, either in any lent hands in or laying viochurch or church-yard, then ipso facto every person so offending church or shall be deemed excommunicate, and be excluded from the fellow-church-yard. ship and company of Christ's congregation." (c) of the statute. In the construction of this statute it has been held that the Eccle- Construction siastical Court may proceed upon the two first sections, and is 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. (cc) No previous conviction is necessary in this case; though, if there be (a) Ante, 292. (b) 1 Hawk. P. C. c. 63, s. 23. (c) The 9 Geo. 4, c. 31, repeals this act as far as relates to the punishment of persons convicted of striking with any weapon, or drawing any weapon with in tent to strike as therein mentioned." The 1 M. sess. 2. c. 3, as to disturbances during the time of divine service. one, the ordinary may use it as proof of the fact. But before the Ecclesiastical Court could proceed for the offence, in the third section, (now repealed) there must have been 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 churchwardens, 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 persons, of their own power and authority, do and shall willingly and of purpose, by open and overt word, fact, act, or deed, maliciously or contemptuously molest, let, disturb, vex, or trouble, 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 universities of Oxford and Cambridge, or otherwise lawfully authorized or charged by reason of his or their cure, benefice, or other spiritual promotion or charge, in any of his or their open sermon, preaching, or collation, that he or they shall make, declare, preach, or pronounce, 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 parson, vicar, parish-priest, or curate, or any lawful priest, preparing, saying, doing, singing, ministering, or celebrating, the 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 authorized, 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 churchyard," 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 the 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) purpose molest The 1 Mary, stat. 2, c. 3, merely gave to the common law cogni- The party must, zance of an offence, which was before punishable by the ecclesiastical maliciously, law; and in order to be within that statute, the party must malici- wilfully, or of ously, wilfully, or of purpose, molest the person celebrating divine the minister. service. The plaintiff on a Sunday presented a notice to the parish clerk, and desired him to read it. The clerk, after consulting the minister, refused to do so. After the Nicene Creed had been read, and whilst the minister was walking from the communion table to the vestry-room, and whilst no part of the service was actually going on, the plaintiff stood up in his pew and read a notice that a vestry would be held to choose churchwardens, whereupon the minister desired a constable to take him out of the church, which the constable did, and detained him an hour after the service was over, and then allowed him to go upon promising to attend before a magistrate the next day. It was held, that although the constable might be justified in removing him from the church, and detaining him till the service was over, he could not detain him afterwards to take him before a magistrate under this statute. Abbott, C. J., said, "had the notice been read by the plaintiff whilst any part of the service was actually going on, we might have thought that he had done it on purpose to molest the minister; but the act having been done during an interval when no part of the service was in the course of being performed, and the party apparently supposing that he had a right to give such a notice, I am not prepared to say that the 1 Mary, stat. 2, c. 3, warranted his detention in order that he might be taken before a justice." (1) The statute further provides, that persons rescuing offenders so Rescuing of apprehended as aforesaid, or hindering the arrest of offenders, shall fenders, or hindering their sumer like imprisonment, and pay a fine of five pounds for each arrest. offence. (m) And if any offenders be not apprehended, but escape, Escape of the escape is to be presented at the quarter sessions, and the inha- offenders. bitants of the parish where the escape was suffered are to forfeit five pounds. (n) Precedents are to be met with of indictments for breaking the windows of a church, by firing a gun against them: () but it has been doubted whether such an indictment is sustainable, as being for a mere trespass. (p) (i) 1 Mar. sess. 2. c. 3, s. 2, 3, 4, 5, 6. (k) 1 Hawk. P. C. c. 63, s. 31. Gibs. 372. (1) Williams v. Glenister, 2 B. & C. 699. It was also held that the case did not come within the 1 W. & M. c. 18. post, p. 302. (m) Sec. 7. (0) 2 Chit. Crim. L. 23. Arresting a clergyman engaged in divine service. 1 W. & M. c. 18. Disturb congregations. By the 9 Geo. 4, c. 31, s. 23, "if any person shall arrest any clergyman upon any civil process while he shall be performing divine service, or shall with the knowledge of such person be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall suffer such punishment by fine or imprisonment, or both, as the Court shall award. (r) The statute 1 Wm. & M. c. 18, s. 18, which was passed for the purpose of exempting Protestants dissenting from the church of ing dissenting England from the penalties of certain laws therein mentioned, enacts, "that if any person or persons shall, willingly and of purpose, 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 sessions; 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. Points de cided upon this statute. 52 Geo. 3, c. 155, further provision against the 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. (s) 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. (t) The oaths taken by a preacher under this act are matter of record, and cannot be proved by parol evidence: but it is not necessary, upon an indictment for disturbing a dissenting congregation, to prove that the minister has taken the oaths. (u) 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. (v) 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. (w) Upon the conviction of several defendants, each of them is liable to a penalty of twenty pounds. (x) The 1 Wm. & M. c. 18, only applies where the thing is done wilfully, and of purpose to disturb the congregation or misuse the minister. (y) A late statute makes further provision for the punishment of persons disturbing religious assemblies; and enacts, "that if any person or persons do and shall wilfully and maliciously or contemptuously (r) But the arrest notwithstanding, if (u) Rex v. Hube, Peake R. 131. (w) Id. Ibid. (x) Rex v. Hube, 5 T. R. 542. (y) Per Abbott, C. J., Williams r. Glenister, ante, 301. See the case. |