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at common Sunday with force and arms at, &c. in the parish church there law for mis- during the celebration of divine service, the bench of one Church and A. B. gentleman, there being, from its ancient and proper disturbing place unlawfully, and unjustly did take and remove, and also then and there with force and arms unlawfully, unjustly, and irreverently did disturb and hinder one E. F. clerk, then being curate of the parish church aforesaid, and in the execution of his office and in the reading of divine service, in contempt of the laws of this realm, to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity.

whilst reading divine

service. (e)

Indictment

c. 4. for striking a person with

[Commencement of indictment as ante, 2,] that C. D. late on 5 Ed. VI. of, &c. on, &c. with force and arms at the parish aforesaid, [*22] in* the county aforesaid, in a certain church yard belonging to the same parish and there situate, maliciously did strike one A. B. spinster, with a certain weapon made of iron and steel called a hanger, which he the said C. D. then and there had and held in his right hand against the form of the statute in such case made and provided, and against the peace of our said lord the king, his crown and dignity.

a weapon

in a churchyard. (f)

The like with an intent to

strike. (g)

With his right hand did draw a certain weapon called a hanger, with an intent to strike one A. B. with the same weapon against the form of the statute, &c. and against the peace of our said lord the king, his crown and dignity.

(e) See the precedent, Trem. P. C. 239.

(f) See the precedents, Cro. C. C. 107. West, 91. 93. 1 East, P. C. 410, 1. Hawk. b. 1. c. 63. s. 23 to 29. Lord Mansfield considered this to be an offence at common law, 1 Burr. 243. where the operation of the statute 5 Ed. VI. c. 4. is considered. See also Com. Dig. Cemetery, A. 3. This statute enacts, "that if any person shall maliciously strike another with any weapon in any church or churchyard, or shall draw any weapon in any church or churchyard to the intent to strike another with the same weapon, that then every person so offending, and thereof being convicted by verdict of twelve men, or by his own confession, or by two lawful witnesses, before the justices of assize, justices of oyer and terminer, or justices of peace in their sessions, by force of this act shall be adjudged by the same justices before whom such person shall be convicted, to have one of his ears cut off, and if the person or persons so of fending have none ears whereby he or they should receive such punishment as is before declared, that then

he or they to be marked and burned in the cheek with an hot iron having the letter F, whereby he or they may be known to be Fray-makers or Fighters, and besides that every such person to be and stand ipso facto excommunicated and be excluded from the fellowship and company of Christ's congregation." The last part of the punishment prescribed is no part of the judgment to be pronounced by the common law courts, 1 East, P. C. 410, 1. Hawk. b. 1. c. 63. s. The indictment must shew. that the defendant smote with a weapon, Cro. Car. 464, 5. It is said that he who strikes in a church can no way excuse himself by shewing that the other assaulted him, Hawk. b. 1. c. 63. s. 28. If defendant be convicted, in order to prevent cutting off ears, an application must be made to attorney general, as in 1 East, P. C. 409, 410.

(g) If any weapon is drawn with an intent to strike another, the indictment is then to be framed as in this precedent, Cro. C. C. 8 Ed. 107. It must then be alleged that the weapon was drawn with intent to strike, &c. barely charging that one drew

[*23]

With force and arms at the parish aforesaid, in the county The like for aforesaid, in a certain church yard belonging to the said parish maliciously and there situate, maliciously with his right hand did draw a drawing and certain weapon made of iron and steel, called a hanger, with striking. (h) an intent to strike one A. B. with the same weapon against the form of the statute in such case made and provided, and against the peace of our said lord the king, his crown and dignity. And the jurors aforesaid do further present, that the said C. D. on the said fourth day of April, in the year aforesaid, with force and arms at the parish aforesaid, in the county aforesaid, to wit, in a certain church yard belonging to the same parish and there situate, maliciously did strike the said A. B. with the said weapon, which he the said C. D. then and there had and held in his right hand against the form, &c.

church win

Suffolk, (to wit.) The jurors for our lord the king upon Indictment their oath present, that C. D. late of, &c. and F. L. late for breaking of, &c. with force and arms at, &c. wilfully, maliciously, dows by firwickedly, irreligiously, in contempt of public worship and of ing a gun Almighty God, did shoot off and discharge divers, to wit, two against guns then and there respectively loaded with gunpowder and them. () leaden shot, at, and to, and against divers, to wit, six windows of and belonging to a certain church and mansion house of God, situate, standing, and being in the parish of aforesaid, and then and there being the church of the same parish, the same then and there being in the possession of E. F. clerk, as rector of the rectory of the said parish, and did thereby and therewith, then and there wilfully, maliciously, wickedly, irreligiously, and in contempt of public worship and of Almighty God, break to pieces, shatter, and damage the glass, to wit, 100 panes of glass of great value, to wit, &c. of, and belonging to the said windows, in contempt of religion and public worship and of Almighty God, to the evil example of all others, and against the peace of our said lord the king, his crown and dignity. [A second count was added merely stating, that the windows belonged to the parish church, and omitting the statement that it was the mansion house of God and in possession of the rector].

That C. D. late of, &c. Esq. and E. F. late of the same The like in parish in the same county, gentlemen, on, &c. with force and another form. (k)

his dagger against another is not suf-
ficient to bring the case within the
statute, 2 Leon. 188. Cro. Eliz. 465.
2 Hale, 171. 1 East, P. C. 411.
(h) This is recommended as the
safer form, Cro. C. C. 8 Ed. 107.

(i) It has been doubted whether such an indictment is sustainable, as being for a mere trespass, see 3 Burr. 1701. 1703. 1706. 1731. see prece

dents for breaking windows of a
house, Cro. C. C. 7 Ed. 745. Cro. C.
A. 485. 4 Wentw. 309. If the fact,
it should be shewn that the hearing
of divine service was obstructed.

(k) This form was recommended
as preferable to the above, by a very
eminent crown lawyer, he at the
same time doubting whether any in-
dictment would lie.

[*24]

Indictment

arms at, &c. unlawfully and unjustly did shoot off and discharge a gun, then and there loaded with gunpowder and leaden shot at, to, and against a window of the parish church of in the county aforesaid, and by force of the gunpowder and leaden shot so shot off and discharged out of the said gun by them, the said C. D. and E. F. unlawfully and unjustly then and there did break to pieces, shatter, and damage the glass, to wit, 200 panes of glass of great value, to wit, of, &c. of and belonging to the windows of the said church of the parish of, aforesaid, in the county aforesaid, in contempt, &c. to the evil example, &c. and against the peace, &c.

[Commencement of indictment as ante, 2]. That the defor disturb fendants being persons of evil minds and dispositions, and not ing a dissenting congre- regarding the laws and statutes of this realm, nor fearing the gation on to- pains and penalties therein contained, but unlawfully and wilferation act, fully intending maliciously and contemptuously to disquiet and 1 W. & M. c. disturb a certain congregation* of protestant dissenters from 18. s. 18. (1) the church of England, assembled for the purpose of religious

[*25]

(1) See form, 5 T. R. 542. Peake, Rep. 132. The 1 W. & M. c. 18. s. 18. enacts, "that if any person or persons, at any time or times after the 10th day of June, do and 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 the 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 of fence at the said general or quarter sessions, shall suffer the pain and penalty of twenty pounds to the use of the king's and queen's majesties, their heirs and assigns for ever." The 52 Geo. III. c. 155. s. 12. enacts, "that if any person or persons do and shall wilfully and maliciously or contemptuously disquiet or disturb any meeting, assembly or congregation of persons assembled for religious worship, permitted or authorized by this act or any former act or acts of parliament, or shall in any way disturb, molest or misuse any preacher, teacher or person officiating at such meeting,

assembly 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 said offence at the said general or quarter sessions, shall suffer the pain and penalty of forty pounds."-See a precedent on the last act, post 27, 8.-It was held in Peake Rep. 132. that it is not necessary in support of the above indictment to prove the taking of the oath required by the act; but if proved it must be by the record and not by parol evidence. It is not necessary to prove malice, and a person claiming an interest may be indicted, Peake, 132. An indictment found at sessions may be removed into the King's Bench by prosecutor, before verdict, 5 Term Rep. 542. Each defendant is liable to the penalty of twenty pounds, 5 Term Rep. 542. When there is any doubt as to the proof of the defendants having committed the disturbance by entering into the place of worship, the indictment should be framed and a count should be added on the 52 Geo. III. c. 155. s. 12. as

worship, (m) on, &c. (n) with force and arms at, &c. did wilfully and of purpose maliciously and contemptuously come into a (0) certain chapel, situate, &c. the same chapel then and still being duly certified, registered, and allowed, pursuant to the statute in such case made and provided, and did then and there wilfully and of purpose during the time of divine worship, maliciously and contemptuously disquiet and disturb a certain congregation of protestant dissenters from the church of England, being then and there assembled in the aforesaid chapel for the purpose of religious worship, in contempt of public worship, to the evil example of all others, against the form of the statute in such case made and provided, and against the peace, &c.

That A. B. late of, &c. C. D. late of, &c. and E. F. late of, The like in &c. being disorderly and ill disposed persons, on, &c. the same another form. (p) being the Lord's day commonly called Sunday, with force and arms unlawfully, willingly, and of purpose, maliciously and contemptuously came into a congregration of protestant dissenters being subjects of our said lord the present king, then lawfully assembled and met for religious worship in the dwelling house of J. M. in the said parish of B. aforesaid, the same congregation then and there being a congregation for religious worship, permitted and allowed by a certain act of parliament made and passed in the first year of the reign of their said late majesties king William and queen Mary; and the said place of the said meeting of the said congregation, then and there being duly certified and registered according to the said act, and did then and there unlawfully, wilfully, and of purpose maliciously and contemptuously disquiet and disturb the same congregation then and there assembled and met as aforesaid, against the form of the statute, &c. and against the peace, &c. And the jurors aforesaid do further present, that the said Second A. B., C. D., and E. F. being such disorderly and ill-disposed count. persons as aforesaid, on, &c. the same day being the Lord's day commonly called Sunday,* with force and arms unlaw- [*26] fully, willingly, and of purpose, maliciously and contemptuously did enter and come into a certain room or passage of the

post 27, 8. which subjects the offenders to the greater penalty of forty pounds, and if several concurred, the indictment may be at common law for a conspiracy and riot as post 29. As to an information in the King's Bench for disturbing a dissenting congregation, see 3 Burr. 1683.

(m) This allegation of bad character and intent seems unnecessary, ante 1 vol. 223.245.

(n) Some indictments here state "being the Lord's Day, commonly called Sunday," see 2 Starkie, 650.

[blocks in formation]

The like for

disturbing a

congrega

tion of Ana.
baptists on
1 W. & M.

c. 18. s. 18.

(2)

dwelling house of the said I. M. adjoining to a certain other room in the same dwelling house, in which last mentioned room, a certain congregation of protestant dissenters, subjects of our said lord the present king, were then and there lawfully assembled and met for religious worship, the same congregation then and there being a congregation for religious worship, permitted and allowed by a certain act of parliament, made and passed in the said first year of the reign of our said late majesties king William and queen Mary, and the said place of the said meeting of the said congregation then and there being duly certified and registered according to the said act, did then and there unlawfully, willingly, and of purpose, and maliciously, irreverently, and contemptuously make divers great cries, noises, and disturbances, to disturb and disquiet, and did then and there disturb and disquiet the same congregation so then and there assembled and met as aforesaid, against the form, &c. and against the peace, &c.

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[Commencement as ante, 2]. Middlesex. That at the general quarter sessions of the peace of our sovereign lord George the third, king of Great Britain, &c. holden for the county of Middlesex, at Hicks's Hall, in Saint John Street, in the said county, by adjournment, on the day of in the year of the reign of our sovereign lord, George the third, king of Great Britain, &c. before Sir John Hawkins, knight, and others, their fellows, then justices of our said lord, the now king, assigned to keep the peace, in the said county of Middlesex, and also to hear and determine divers felonies, trespasses, and other misdemeanours committed in the said county, A. B. clerk, teacher, or preacher to a congregation of protestants, dissenting from the church of England, scrupling infant baptism, pursuant to the statute in that case made and provided, did certify to his Majesty's justices of the peace for the said county, assembled in quarter sessions, aforesaid, that he had appointed a certain house situate at

in Staines, in the parish of in the county of Middlesex, to assemble and meet in and for religious worship, which at the same general quarter sessions of the peace, was registered and recorded in manner and form aforesaid, according to the direction of the said act. And the jurors aforesaid, upon their oath aforesaid, do further present that afterwards, to wit, on, &c. the same being the Lord's day about the hour of seven, in the afternoon of the same day, a congregation [*27] of protestants, dissenting from the Church of England, of which one R. B. was then the teacher or preacher, were assembled for the public worship and service of Almighty God, in the house aforesaid, being the same house so certified, registered, and recorded as aforesaid; and that, &c. [state names of

(9) See form, 4 Wentw. 363. See Willes, 463. as to baptists.

*

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