libel' concerning her Majesty's Government and the Parliament of the United Kingdom, with intent to create disaffection and hatred to her Majesty's Government and the Parliament, a special plea of justification cannot be pleaded under the 6 & 7 Vict. c. 96, s. 6. (n)

Where to a criminal information for a libel the defendant pleaded a justification, alleging that the imputations contained in the libel were true, it was held that it was not competent to the defendant to prove that imputations identical with those in the libel had been previously published in a book. (0)

Where a justification is pleaded under the 6 & 7 Vict. c. 96, s. 6, to an information for a defamatory libel, and the libel contains several distinct imputations, and the plea alleges the truth of all, and is traversed generally, if the evidence fail as to any one of them, the verdict will be entered generally against the defendant. Where, therefore, upon the trial of such an issue upon such a plea, evidence was offered in support of some only of the imputations, and the jury found that only one of the imputations upon which evidence was offered was proved, the verdict was entered for the Crown generally; as there can be no partial finding for a defendant on the ground that a justification is partially established. (p) But where the libel was general, to the effect that the prosecutor was one of a gang of cardsharpers, and the plea of justification alleged specific instances of cardsharping, and also that the prosecutor confederated with others for the purpose of cheating, and did so cheat, at various places, it was held that it was sufficient to prove the plea in substance, and that it was so proved by the jury finding that in two instances the prosecutor did cheat at cards, and that he did confederate with other persons for that purpose. (q)

By the express enactment that, wherever there is a conviction after such a plea of justification 'the Court, in pronouncing sentence,' shall 'consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove and disprove the same,' the Court is to consider the evidence on the one side and the other, and to form their own conclusion whether it aggravates or mitigates the guilt of the defendant, and they are to apportion the punishment accordingly. The evidence, as it appears on the notes of the judge who presided at the trial, comes in place of affidavits in aggravation and mitigation of punishment when sentence is to be pronounced, and by that the sentence is to be regulated, and not by any declaration of the jury as to the credit which they think ought to be given to the witnesses. (?)

In such a case the defendant may, in mitigation of punishment, show by affidavit that after the publication, but before pleading, information was given to him which, if true, would have supported an allegation in the plea, evidence having been given at the trial to account for the non-production of proof, but no evidence in support of the allegation itself. (s)

A libel imported to be founded on certain newspaper reports, and upon the foundation of those reports charged certain troops with acts of murder: after conviction the defendant offered affidavits that the

(n) R. v. Duffy, 2 Cox, C. C. 45.
(0) R. v. Newman, 1 E. & B. 268.
(p) R. v. Newman, 1 E. & B. 558.

(q) R. v. Labouchere, 14 Cox, C. C. 419.
(r) R. v. Newman, E. & B. 558.
(s) Ibid.

newspapers did contain those reports, and also other affidavits that the facts were true. The former affidavits were received, because they explained the situation in which the defendant stood at the time he wrote the libel, and showed the impression under which he wrote; but the latter were rejected, because the receiving them might deprive of a fair trial persons who might afterwards be tried for the murders; and if murders were committed, the proper course was to prosecute and bring to a fair trial, not to libel and create an unfair prejudice. (t) Where an indictment for a libel on the governor of a parish workhouse was preferred by the direction and carried on at the expense of the select vestry of the parish, and the defendant having removed it into the King's Bench by certiorari was convicted, it was held that the party libelled was not the 'party grieved' within the 5 & 6 Will. & M. c. 11, s. 3, and, therefore, was not entitled to costs. (u)

Costs.

When a prosecutor or defendant is entitled to costs under 6 & 7 Vict. c. 96, s. 8, see ante, p. 649. On a criminal information for libel the defendant, if he obtain a verdict, is entitled to costs under the 6 & 7 Vict. c. 96, s. 8, though he has not pleaded a special plea under section 6; and the judge cannot deprive him of costs by a certificate, the provision in the 4 & 5 Will. & M. c. 18, s. 2, on this head being superseded by the later Act. (v) Upon the trial of a criminal information for a defamatory libel the defendant obtained a verdict, whereupon the Master on taxation allowed him the costs which he had incurred in showing cause unsuccessfully against the rule nisi for filing the information under the above section 8: held by Mellor, J., and Lush, J. (Blackburn, J., dub.), that the allowance was properly made. (w) The Court of Queen's Bench has no jurisdiction to direct the clerk of assize to review his taxation of costs (under the 6 & 7 Vict. c. 96, s. 8) of an indictment for libel tried on the Crown side under a commission of oyer and terminer. But, perhaps, one of the commissioners under that commission might do so, before that commission was superseded. (x)

The offence of libel is not triable at Quarter Session (5 & 6 Vict. c. 38, s. 1).

(t) R. v. Burdett, 4 B. & A. 314.

(u) R. v. Dewhurst, 5 B. & Ad. 405. See R. v. Hawdon, 3 P. & D. 44.

(v) R. v. Latimer, 15 Q. B. 1077; 20 L. J. Q. B. 129.

(w) R. v. Steel, 1 Q. B. D. 402; 45 L. J

M. C. 391. It was held on appeal that the Court of Appeal had no jurisdiction, as this was a criminal case, 2 Q. B. D. 37.

(x) R. v. Newhouse, 1 Bail. C. R. 129; 22 L. J. Q. B. 127.

CHAPTER THE TWENTY-NINTH.

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; (b) 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. (c)

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.

By the 5 & 6 Edw. 6, c. 4, if any person whatsoever shall, by words only, quarrel, chide, or brawl, in any church or churchyard, that then it shall be lawful unto the ordinary of the place where the offence shall be done, and proved by two lawful witnesses, to suspend every person so offending; that is 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.' (d)

By sec. 2, if any person or persons shall smite or lay violent hands upon any other, either in any church or churchyard, then ipso facto every person so offending shall be deemed excommunicate, and be excluded from the fellowship and company of Christ's congregation.'(e)

In the construction of this statute it has been held that the Ecclesiastical 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 churchyard is still an offence at

(a) The statute 5 & 6 Edw. c. 1, s. 2, imposed a general duty on people to go to church, and conferred a general right correlatively to go to church, and these are still binding on members of the Church of England. Taylor v. Timson, 20 Q. B. D. 671. (b) Ante, p. 588.

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

(d) By the 23 & 24 Vict. c. 32, s. 1, 'it shall not be lawful for any ecclesiastical court in England or Ireland to entertain or adjudicate upon any suit or cause of brawling

commenced after July 3, 1860, against any person not being in holy orders;' and by sec. 4, the 5 & 6 Edw. 6, c. 4, is repealed 'so far as relates to persons not in holy orders.'

(e) 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 intent to strike as therein mentioned.' The statute has three degrees of offences, per Lord Mansfield, C. J., 1 Burr. 242, and only the last, i. e., sec. 3, seems to be repealed. C. S. G.

common law, and the offender may be indicted for it, yet, besides this, he may, by the act, be ipso facto excommunicated. (f) No previous conviction is necessary in this case; though, if there be one, the ordinary may use it as proof of the fact. But 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. (g)

Cathedral churches, and the churchyards which belong to them, are within the statute. (h) And it will be no excuse for a person who strikes another in a church, &c., to show that the other assaulted him. (i) 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, were never within the meaning of the statute. (j)

By the 1 Mary, sess. 2, c. 3, s. 2, 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, churchyard, 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 aidors, 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

(ƒ) Wilson v. Greaves, 1 Burr. 240. (g) Id. ibid. And by Lord Mansfield, C. J., in the same case, 'We proceed to punish, they to amend.'

(h) Dethick's case, 1 Leon. 248.
(i) 1 Hawk. P. C. c. 63, s. 28.
() Id. ibid. sec. 29. See notes (a) and

(e), p. 652.

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.' (k)

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. (1)

The 1 Mary, sess. 2, c. 3, merely gave to the common law cognizance of an offence, which was before punishable by the ecclesiastical law; and in order to be within that statute, the party must maliciously, wilfully, or of purpose, molest the person celebrating divine 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 until the service was over, he could not detain him afterwards to take him before a magistrate under this statute. Abbot, 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, sess. 2, c. 3, warranted his detention in order that he might be taken before a justice.' (m)

The statute further provides, that persons rescuing offenders so apprehended as aforesaid, or hindering the arrest of offenders, shall suffer like imprisonment, and pay a fine of five pounds for each offence. (n) And if any offenders be not apprehended, but escape, the escape is to be presented at the quarter sessions, and the inhabitants of the parish where the escape was suffered are to forfeit five pounds. (0)

Precedents are to be met with of indictments for breaking the

(k) 1 Mary, sess. 2, c. 3, ss. 2, 3, 4, 5, 6. Qu., how far is this Act repealed by the 1 Eliz. c. 2.

(7) 1 Hawk. P. C. c. 63, s. 31, Gibs. 372. (m) Williams v. Glenister, 2 B. & C. 699.

It was also held that the case did not come within the 1 Will. & M. c. 18, post, p. 655. (n) Sec. 7.

(0) Sec. 8.