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and to state what penalties the defendant 21 Geo. 3. c. 49. is generally considered had forfeited, and judgment was to be en- obsolete, is not to be found in Chitty's tered for the plaintiff in such an amount as Statutes or Russell on Crimes ; nor have the Court should direct, not exceeding the

we been able to discover a record of a amount of one penalty, with costs of suit. single case of prosecution under it. To incur If decided in the negative, judgment of the penalty we must both use the place for nolle prosequi, with costs of defence, was "public entertainment or amusement,” and to be entered up for the defendant.

admit for money. We did neither. AdmisDuring the argument the Court having sion to the hall was free. Tickets for Mr. said, that it was very important to ascer- Spurgeon's services, for many of the Roman tain whether any person derived a revenue Catholic Churches in London, and other from the performances, the following words religious services, are sold for money. Our were added to the case by consent : “No title, “Re-creative,” means creating again, profit was made, the expenses exceeding not “diverting.” As secretary of a large the receipts. The money received by the institution I was advised by counsel that a sale of tickets went towards the payment place used for such lectures as are delivered of the choir and the rent of the hall.” at the Royal Institution, if the admission

were on Sundays for money, would be conDenman (Rochfort Clarke with him), for trary to this statute, and we intended these the plaintiff.—Two questions arise: 1, Is proceedings not to resemble such lectures,

public entertainment or amuse- but to be legal. ment” within the statute (2)? 2, Is the de- [BYLES, J.-What meaning do you give fendant protected by registration? The first to entertainment”?] question is chiefly one of fact, and a jury, Comic songs, burlesque, or such a perlooking at the addresses delivered and the formance as the late Mr. Albert Smith's. general character of the proceedings, would The “or” shews that “amusement” exsay that the visitors resorted there for plains and illustrates the meaning here of entertainment. There is nothing in Sir J. entertainment, which does not include Bowring's address and the anecdotes there instruction, such as a lecture by Professor told to shew that “religious worship" was Huxley on Anatomy. intended, nor in the music which the visi- [BYLES, J.-Webster's Dictionary says tors went to hear as at a concert, not to one meaning of “ to entertain ” is “to amuse sing themselves. The proposal that the or instruct by discourse.” The entertainment congregation should sing hymns was never of the senses is often used as an accessory carried out, and it would have been incon- to religion.] sistent with the object of the promoters, Yes ; e.g., the present Ritualists. which was not religious worship.

[WILLES, J.—The Church in and after Secondly, the defendant is not protected the twelfth century was obliged to have by mere registration under 18 & 19 Vict. dramatic representations in order to interest c. 81, but must shew that this was a place the congregation (3).] of meeting for “religious worship.” The The legislature in 1781 did not intend to legislature could not mean that persons by affect such proceedings as ours. The author registration might evade the 21 Geo. 3. c. 49; of 21 Geo. 3. c. 49. was Bishop Porteus, see the old stat. 52 Geo. 3. c. 155. ss. 2, 3. who said, “it restrains no one from professand section 19. of the Toleration Act, ing that mode of religion, and joining in 1 W. & M. c. 18. The name recreative that form of public worship, which his conreligionists” cannot make them what they science best approves. It restrains no one are not.

from speaking, conversing, or writing, upon The Defendant (in person). — These pro- religious subjects. It imposes no other ceedings were such as any earnest-minded restraint than this, .... that no one shall and religious Christian might profitably either pay or be paid for talking blasphemy attend. There was no debating, nothing or profaneness in a public room on the comic, nothing for mere amusement. Stat. Lord's Day. It takes away, in short, no (2) The statute is quoted in the judgment, post,

(3) Strutt's Sports and Pastimes, book 3, ch. 2.

page 6.

other liberty, but the liberty of burlesquing necessary that prayer should be public or Scripture, and making religion a public audible, e.g., the Quakers, and High amusement and a public trade” (4).

MassAsto registration, 1 W. & M. c. 18. required

Prayer is the Soul's sincere desire a certificate wherever Protestant dissenters

Uttered or unexpressed.

James Montgomery. • met for worship, in order to secure loyalty,

to enable the civil power to attend and “When thou prayest, enter into thy closet" see if the congregation were good subjects. - Matt. vi. 6. St. Paul's “Pray without It exempted Protestant dissenters from ceasing"--1 Thess. v. 17—could not mean those statutes, e. g., 23 Eliz. c. 1, 29 Eliz. “pray in public without ceasing.” Laboc. 6, 3 Jac. 1. cc. 4, 5, which made absence rare est orare.” There was prayer on each from church and non-communion highly occasion. Many eminent persons came and penal. The liberal scope of 18 & 19 Vict. made suggestions. Sir J. Bowring wrote C. 81. and the intention to include every his hymn for these occasions. Registration creed without restriction are shewn by the under 18 & 19 Vict. c. 81. does not strain words of section 2, “any other body or that act so much as the holding our meetdenomination of persons,” and by the re- ings in “a disorderly house” would strain markable words of Schedule A, which the 21 Geo. 3. c. 49, which was aimed include others besides Christians. Section against brothels 11. provides that the Registrar General's Denman replied. — “ Profaneness" in 21 sealed certificate shall be evidence in judi- Geo. 3. c. 49. is used in the classical sense of cial proceedings of the facts, and our "non-religious"--Richardson's Dictionary. certificate protects us against this pro- This act was intended to put down all secution so long as it exists—see sec- such meetings as would be thought wrong tion 6.

in those days, and these would certainly [BYLES, J. Could this certificate be have been thought wrong. cancelled ? If, for instance, you use the [WILLES, J.-You must establish two hall for dancing? If it cannot, your argu- points : first, is this “religious worship”? ment that it protects you is weakened.] If it is, it is not within 21 Geo. 3. c. 49.

We might be prosecuted at common law If it is not religious worship, still, is it for such a flagrant violation, but here we contrary to that act? What is “religion” ? are protected.

Is it not what a man honestly believes in BYLES, J.-Would the statute apply to and approves of and thinks it his duty to Mohammedans impugning the Christian inculcate on others, whether with regard doctrines ? WILLES, J.–Or to Mormons ? to this world or the next? A belief in any If the Queen's Indian subjects, moved by system of retribution by an overruling a commercial spirit, were to establish the power? It must, I think, include the prinpractice of reading the Koran, howling in ciple of gratitude to an active power who concert and riding over bodies of prostrate can confer blessings (5).] worshippers, and so amusing the crowd, The absence of


is very

imwould that be within the statute ?]

portant. St. James, in his Epistle, chap. i. verse [BYLES, J.—What is prayer ? Barrow 27, defines "pure religion.”

(6) says it is not only supplication, but [BYLES, J.--Not religion, but Opnovela.] adoration. If there was no prayer here,

The plaintiff objects to the absence of that may indicate a want of devotional prayer, but in Christian worship it is not feeling, which is not confined to this

assembly. ] (4) Hodgson's Life of Bishop Porteus, vol. i. Section 12. of the 52 Geo. 3. o. 155, p. 82. See the entertaining debates in Cobbett's Parliamentary History, vol. xxii. pp. 262-290, (5) Andrews's Lat.-Eng. Dict. prefers the deri. whence it appears that the act was aimed at two vation of “religio,” which presents "the careful kinds of assemblies: one a promenade for exercise pondering of Divine things” as the root of the and refreshment; the other, a theological debating meaning. society, "a school for Metaphysics, Ethics, Pulpit- (6) Works, vol. I., Sermon 6., on the duty of Oratory, Church History, and Canon Law.”




which inflicts a penalty on persons debating on any subject whatsoever, upon temptuously disturbing" a religious assem- any part of the Lord's-day called Sunday, bly, would certainly not apply to an inter- and to which persons shall be admitted by ruption of Sir J. Bowring's address, which the payment of money, or by tickets sold naturally drew forth such expressions, and for money, shall be deemed a disorderly laughter, cheers, and dissent. An attack house or place; and the keeper of such on Christianity by Mohammedans or Jews house, room or place shall forfeit the sum would be in bona fide support of their of 2001. for every day that such house, religious belief, and would differ from this room, or place shall be opened or used as

aforesaid on the Lord's-day, to such person

Cur. adv. vult. as will sue for the same, and be otherwise On the 19th of November the judgment punishable as the law directs in cases of of the Court (Byles, J. and Willes, J.) was

disorderly houses.” The only other part read by

of the act of parliament to which it is

necessary to call attention is the proviso BYLES, J.—This case was argued, at the in section 8, “that nothing in this act Sitting of the Court after last Trinity Term, contained shall be construed to extend to before my Brother Willes and myself. Its take away, alter, or abridge, any of the novelty and great and general importance liberties or immunities to which the Proinduced us to take time for delibera- testant subjects of this kingdom are entitled tion.

by an act made in the 1 Will. & Mary (c. 18.), It is an action brought to recover the intituled “An Act for exempting their sum of 8001. as penalties incurred by the Majesties' Protestant subjects, dissenting defendant under the act 21 Geo. 3. c. 49, from the Church of England, from the penalfor having opened a house of public enter- ties of certain laws.'' tainment or amusement on the Lord's-day, The case states that a number of gentleto which the public were admitted on pay- men, in December, 1866, formed an assoment of money. The case depends on the ciation calling itself an association for the construction of the act, which is intituled development of religious feeling by the An Act for preventing certain abuses elevation and instruction of all persons and profanations on the Lord's-day, called who should either join the association or Sunday.” The recital of the act is as fol- attend at the services hereafter described. lows: “Whereas certain houses, rooms, or The defendant was president of the assoplaces, within the cities of London and West- ciation, and he duly registered a place minster, or in the neighbourhood thereof, called St. Martin's Hall as the place of have of late frequently been opened for meeting intended to be used for religious public entertainment or amusement upon worship by the association, under the title the evening of the Lord's-day, commonly of “Recreative Religionists.” This desigcalled Sunday; and at other houses, rooms, nation was explained at the bar to refer, or places, within the said cities, or in the not to recreation in its ordinary sense, but neighbourhood thereof, under pretence of to the creation of a new form of religious inquiring into religious doctrines, and ex- worship, by which it was hoped to remedy plaining texts of Holy Scripture, debates the alleged indifference of the people at have frequently been held on the evening large to ordinary religious services. of the Lord's-day, concerning divers texts The services in question at St. Martin's of Holy Scripture, by persons unlearned Hall were held on Sunday evenings, which and incompetent to explain the same, to hall for this purpose was registered as a the corruption of good morals, and to the place of religious worship. The services great encouragement of irreligion and pro- consisted of pieces of sacred music, such faneness.” Then follows the enacting clause as the Stabat Mater, performed on the (section 1), upon which the question arises : organ accompanied by other instruments

That, from and after the passing of this and by a gratuitous choir; but there were present act, any house, room, or other place, some paid singers. An address was deliwhich shall be opened or used for public vered always instructive, sometimes of a entertainment or amusement, or for publicly religious tendency, sometimes neutral rather

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than religious, but never aggressively irre- the services above described constituted ligious, and never profane. There seems to a public “entertainment or amusement" have been a desire to introduce the singing within the meaning of the statute. of hymns, and to this end certain hymns were It is not easy, nor indeed necessary, to printed and circulated among the audience, define the exact meaning of the word but they were never sung. Some of the “ entertainment” in this connexion ; but hymns could scarcely be called devotional perhaps the two words “entertainment or compositions, but among the hymns was amusement” reflect light on each other. to be found Addison's metrical paraphrase Some assistance may possibly be derived of the 19th Psalm. In most of them were from the original act, 25 Geo. 2. c. 36. (7), expressed sentiments of adoration towards which statute speaks of “public dancing, the Supreme Being, and in all of them music, or other public entertainment of exhortations to moral duty. There was the like kind,” as constituting a disorderly no public prayer or address to the Deity, house. It is not, however, necessary to other than was contained in the musical express any opinion on many questions compositions. There was no debating or which might arise, e. 9., whether meetings discussion; nothing dramatic or comic, or for mere instruction be within the statute; tending to the corruption of morals, or to whether, for instance, a lecture on the the encouragement of irreligion or pro- higher branches of the pure mathematics fanity.

would be an “entertainment" within the Admission to the body of the hall was statute. But whatever the true definition gratuitous; but tickets were sold and money of the expression “entertainment or amusetaken for admission to reserved seats. The ment” may be, we think it quite clear that object of the promoters of the association meetings for religious worship are not withwas not pecuniary gain: on the contrary, in the act. It is not essential to such prothe services were carried on at a pecuniary tected religious worship that it should be in loss to themselves, although attended by accordance with the religion of the State, considerable numbers of the public.

or even with the general religion of the Few litigants present themselves under nation. The worship of Jews, who deny circumstances which entitle them to greater the Christian revelation entirely, and of respect. The plaintiff is honestly endea- Mohammedans, who supersede it (some vouring to stop by this action what he millions of whom are now our fellow subdeems a public desecration of the Lord's- jects), would not be within the statute, if day, and only asks judgment for a single any of their festivals happened to fall on penalty. The defendant is expending his the Lord's day, and persons were admitted time and money, as he conceives, for the partly gratuitously and partly by tickets, as public benefit. The plaintiff, however, con- in the case under consideration. Indeed, tends that the registration of the place of Jews are now placed on the footing of meeting as a place for religious worship Protestant Dissenters. was a mere colourable attempt to evade The plaintiff may consider the worship the effect of the statute 21 Geo. 3. c. 49. to be of a dangerous tendency, or the But this is a question of fact, and we are religious element introduced to be so scanty by the terms of the special case to draw and shadowy as to be altogether inadequate inferences of fact, and we think this to meet the urgent necessities or satisfy imputation on the defendant is not well the religious instincts of human nature; but founded, but that the defendant honestly these are inquiries into which we, it is did intend to introduce religious worship, plain, cannot enter. though not according to any established Some stress was laid on the fact that the or usual form.

words sung were often in the Latin lanWe have now to determine whether the guage only, and that the principal attracservices at St. Martin's Hall, so registered, tion was the music. But, if this objection constituted a disorderly house, within the prevailed, it is easy to see that it would true meaning of the statute 21 Geo. 3. c. 49. The precise question therefore is, whether

(7) Section 2.



have a more extensive application than the

[CROWN CASE RESERVED.) plaintiff contemplated.

1868. The discourses delivered were intended


Nov. 14. to be instructive. It is true that occasionally a diverting incident or passage was Larceny False Pretences - Receiving introduced. But it must be remembered

Money obtained by Fraud from Cashier of that the greatest preachers of the English

Bank. Church, such as Bishop Latimer or Dr. South, have not hesitated to do the same, To constitute larceny, there must be a when the subject required it, or perhaps taking of the property against the will of when it became necessary to


the owner. But the cashier of a bank has attention.

authority, arising from the nature of his It is sufficient to say that in our employment, to pay the money of the bank opinion a place duly and honestly regis

to persons presenting genuine orders, and tered as a place of public worship, in which to judge of their genuineness. Therefore, a no music but sacred music is performed or cashier who, deceived by a forged order pursung, where nothing dramatic is introduced, porting to be drawn by a customer, pays where the discourses delivered are intended money to the payee, who presents it knowing to be instructive, and contain nothing hos- it to be forged, thereby parts with the protile to religion, where the objects of the perty in the money of the bank to the payee promoters may be either to advance their so as to bind his employer; and the payee, is own views of religion, or as they allege, therefore not guilty of larceny, but of obtain“ to make science the handmaid of religion,' ing money by false pretences. And a conis not “used for public entertainment or viction of a person who received the money, amusement” within the statute.

with a knowledge of the fraud, from the payee Our opinion being that the case does not who had obtained it in the manner above fall within the enacting clause, it is only mentioned, for receiving the money knowing necessary to observe on the proviso in sec- it to have been stolen, was held bad. tion 8, that the fact of payment being made for the reserved seats, the doors being open, This case was reserved by the Common does not deprive the defendant of the pro- Serjeant: tection of the Toleration Act.—(See 1 The prisoner was tried at the August W. & M. sess. 1. c. 18.)

Session of the Central Criminal Court, We are duly sensible of the inestimable an indictment charging him, in the value and importance to the whole nation first count, with stealing money to the of the statutes passed to prevent the amount of 1001., the property of Henry desecration of the Lord's-day, but we Allen ; in the second count with receiving think we should unduly stretch a penal the

the same knowing it to have been stolen; enactment if we applied the statute of and in two other counts the ownership of 21 Geo. 3. c. 49. to the case now under the money was laid in the London and consideration.

Westminster Bank.
Judgment for defendant. It appeared in evidence that the pro-

secutor, Henry Allen, had paid moneys,

amounting to 9001., into the London and Attorneys-Baxter, Rose, Norton & Co., for plain- Westminster Bank, on a deposit account in tiff; Shaen & Roscoe, for defendant.

his name, and on the 27th of April, 1868, that sum was standing to his credit at that bank. On that day the wife of Henry Allen presented at the bank a forged order, purporting to be the order of the said Henry Allen for payment of the deposit, and the cashier at the bank, believing the

* Coram Bovill, C.J., Channell, B., Byles, J., Blackburn, J. and Lush, J.


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