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 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 *417] 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 security for his good behavior 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.()

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. 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 Qu., how far is this Act repealed by the 1

(k) 1 Mary, sess. 2, c. 3, ss. 2, 3, 4, 5, 6. Eliz. c. 2.

(2) 1 Hawk. P. C. c. 63, s. 31; Gibs. 372.

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 windows of a church, by firing a gun, against them :(p) but it has been doubted whether such an indictment is sustainable, as being for a mere trespass.(q)

[*418

By the 24 & 25 Vict. c. 100, s. 36, "Whosoever shall, by threats or force, obstruct or prevent, or endeavor to obstruct or prevent, any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting house, or other place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergyman or other minister who is engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties in this sectiou aforesaid, or who to the knowledge of the offender shall be going to perform the same or returning from the performance thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor."(r)

The 1 Will. & M. c. 18, s. 18, which was passed for the purpose of exempting Protestants dissenting from the Church of 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.

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.(†)

[*419 (m) Williams Glenister, 2 B. & C. 699 (9 E. C. L. R.). It was also held that the case did not come within the 1 Will. & M. c. 18, post, p. 418. (n) Sec. 7.

(0) Sec. 8.
(2) Id. Ibid., and see ante, p. 91.

(p) 2 Chit. Crim. L. 23. (r) This clause is new in England, except that part which applies to the arrest of any clergyman while performing divine service, or going to perform the same, or returning from the performance thereof, which was contained in both the 9 Geo. 4, c. 31, s. 23, and 10 Geo. 4, c. 34, s. 27 (I.). The rest of the clause is framed on the Irish Acts of the 27 Geo. 3, c. 15, s. 5; 40 Geo. 3, c. 96, s. 5; 5 Geo. 4, c. 25, s. 5; and 5 Vict. sess. 2, c. 28, ss. 7, 19. The amendments consist in including ministers not of the Church of England and Ireland, and all places of divine worship, and all burial places, and in adding the endeavor to prevent or obstruct, the offering any violence to, and the arrest under pretence of executing any civil process of, any clergyman or minister engaged in or about to engage in any of the rites or duties mentioned in this clause. As to hard labor, &c., see ante, p. 4.

(8) Rex v. —— 1 Keb. 491; Burn's Just. tit. Public Worship. (t) Rex v. Hube, 5 T. R. 542.

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 dis turbing 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 Will. & M. c. 18, only applies where the thing is done wilfully, and of purpose to disturb the congregation or misuse the minister. (y)

By the 52 Geo. 3, c. 155, s. 12, "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." By sec. 14 nothing contained in the Act shall extend to Quakers, nor to any meetings or assemblies for religious worship held or convened by them.

It has been holden upon this statute, in conformity to the decision which has been mentioned upon the 1 Will. & M. c. 18,(z) that an indictment found at the quarter sessions may be removed into the Court of King's Bench by certiorari before trial, (a) and may be tried at the assizes.

A similar provision to that contained in the 1 Will. & M. c. 18, s. 18,(b) relating to Protestant dissenters, is enacted in the 31 Geo. 3, c. 32, s. 10, with respect to Roman Catholic congregations, or assemblies of religious worship permitted by the latter statute.

The 18 & 19 Vict. c. 86, recites the 1 Will. & M. sess. 1, c. 18, and 52 Geo. 3, c. 155, and enacts that nothing contained in these Acts or in the 15 & 16 Vict. c. 36, shall apply, (1), to any congregation or assembly for religious worship held in any parish or ecclesiastical district, and conducted by the incumbent, or in case the incumbent is not resident, by the curate of such parish or *district, or by *420] any person authorized by them respectively; (2), to any congregation or assembly for religious worship meeting in a private dwelling-house or on the premises belonging thereto; (3), to any congregation or assembly for religious worship meeting occasionally in any building or buildings not usually appropriated to purposes of religious worship. And no person permitting any such congregation to meet as herein-mentioned in any place occupied by him shall be liable to any penalty for so doing.(c)

The 23 & 24 Vict. c. 32, s. 2, renders liable to summary conviction any person guilty of riotous, violent or indecent behavior in any church or chapel of the Church of England and Ireland, or in any chapel of any religious denomination, or in any place of religious worship certified under the 18 & 19 Vict. c. 81, whether during the celebration of divine service or at any other time, or in any

(u) Rex v. Hube, Peake R. 131.

(w) Id. Ibid.

(x) Rex v. Hube, 5 T. R. 542.

(v) Id. Ibid.

(y) Per Abbott, C. J., Williams v. Glenister, ante, p. 417.

(2) Rex v. Hube, supra.

(a) Rex v. Wadley, 4 M. & S. 508.

(b) Ante, p. 418.

(c) By sec. 2, so much of the 2 & 3 Will. 4, c. 115, as relates to Roman Catholics, and of the 9 & 10 Vict. c. 59, as relates to Jews, is to be read as applicable to the laws to which Protestant dissenters are subject after the passing of this Act. See the 18 & 19 Vict. c. 81, as to registering places of religious worship.

churchyard or burial ground, or who molests, disturbs, &c., any preacher or clergyman as therein mentioned.

The facts attending disturbances of religious assemblies may sometimes authorize proceedings at common law for a conspiracy or a riot :(d) and we have seen that by the 24 & 25 Vict. c. 97, s. 11, if persons riotously assembled begin to demolish or pull down any church or chapel, or any chapel for the religious worship of persons dissenting from the worship of the united church of England and Ireland, they will be guilty of felony.(e)

*CHAPTER THE TWENTY-NINTH.

OF FORCIBLE ENTRY AND DETAINER.

[*421

A FORCIBLE entry or detainer is committed by violently taking or keeping possession of lands and tenements with menaces, force, and arms, and without the authority of the law. (a) It has been laid down in the books that, at common law, and before the passing of the statutes relating to this subject, if a man had a right of entry upon lands or tenements, he was permitted to enter with force and arms; and to detain his possession by force, where his entry was lawful:(b) and that even at this day he who is wrongfully dispossessed of his goods, may justify the retaking of them by force from the wrongdoer, if he refuses to redeliver them.(c) However, it is clear that, in many cases, an indictment will lie at common law for a forcible entry, if it contain, not merely the common technical words, "with force and arms," but also such a statement as shows that the facts charged amount to more than a bare trespass, for which no one can be indicted. (d) And in a modern case in the Court of King's Bench, it was mentioned, by the great judge who then presided in that Court, as a part of the law which ought to be preserved, that no one shall with force and violence assert his own title. (e) But on a subsequent day of the same term he said that the Court wished that the grounds of their opinion in that case might be understood, and desired that it might not be considered as a precedent in other cases to which it did not apply. He then proceeded: "Perhaps some doubt may hereafter arise respecting what Mr. Serjeant Hawkins says, that at common law the party may enter with force into that to which he has a legal title. But without giving any opinion concerning that dictum one way or the other, but leaving it to be proved or disproved whenever that question shall arise, all that we wish to say is, that our opinion in this case leaves that question untouched it appearing by this indictment that the defendants unlawfully entered, and therefore the Court cannot intend that they had any title.(ƒ) There seems now to be no doubt that a party may be guilty of a forcible entry by violently, and with force, entering *into that to which he has a legal title.(g)1 (d) See Proceed. 2 Chit. Crim. L. 29. (a) 4 Blac. Com. 148.

(e) Ante, p. 382.

[*422

(b) Dalt. Just. 297; Lamb. 135; Crom. 70 a, b; 2 Hawk. P. C. c. 64, ss. 1, 2, 3; Bac. Abr. tit. Forcible Entry and Detainer.

(e) 1 Hawk. P. C. c. 64, s. 1; Blades v. Higgs, 10 C. B. (N. S.) 713.(100 E. C. L. R.). (d) Rex v. Bake, 3 Burr. 1731; Rex v. Bathurst, Say. 225, referred to in Rex v. Storr, 3 Burr. 1699, 1702; Rex v. Wilson, 8 T. R. 357, in which last case the indictment charged the defendants (twelve in number) with having unlawfully and with a strong hand entered, &c., and it was held good.

(e) By Lord Kenyon, C. J., Rex v. Wilson, 8 T. R. 361, and in Taunton v. Costar, 7 T. R. 431, the same learned judge said, "If the landlord had entered with a strong hand to dispossess the tenant by force [after the expiration of his term] he might have been indicted for a forcible entry," and see Turner v. Meymot, 1 Bing. 158 (8 E. C. L. R.) ; 7 Moor. 574.

(f) 8 T. R. 364.

(g) In Newton v. Harland, 1 M. & Gr. 644, the judges of the Court of Common Pleas

1 Comm. v. Keeper of the Prison, 1 Ashm. 140. It is no forcible entry for a man to enter premises of which his wife is in possession: Morris v. Bowles, 1 Dana 97.

But where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the person wrongfully holding possession. (h)

Whatever may be the true doctrine upon this subject at common law, the statutes which have been passed respecting forcible entries and detainers are clearly intended to restrain all persons from having recourse to violent methods of doing themselves justice and it is the more usual and effectual method to proceed upon these statutes, which give restitution and damages to the party grieved.

By the 5 Rich. 2, c. 8, none shall make entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner," on pain of imprisonment and ransom. This statute gave no speedy remedy, leaving the party injured to the common course of proceeding by indictment or action; and made no provision at all against forcible detainers. The 15 Rich. 2, c. 2, goes further, and enacts, that on complaint of forcible entry into lands and tenements, or other possession whatsoever, "to the justices of peace or any of them, the same justices or justice take sufficient power of the county, and go to the place where the force is made; and if they find any that hold such place forcibly after such entry made, they shall be taken and put in the next gaol, there to abide convict by the record of the same justices or justice," until they make fine and ransom : and that the people of the county and the sheriff shall assist, &c., on pain of imprisonment and fine. "And in the same manner it shall be done of them that make such forcible entries in benefices or offices of holy church." But this statute gave no remedy against those who were guilty of a forcible detainer after a peaceable entry, nor against those who were guilty of both a forcible entry and forcible detainer, if they were removed before the coming of a justice of peace; and it gave *423] no power to the justice to restore the party *injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the justices in the execution of the statute. Further enactments were therefore necessary.(i)

By the 8 Hen. 6, c. 9, s. 3, though the persons making forcible entries "be present or else departed before the coming of the justices or justice, the same justices or justice, in some good town next to the tenements so entered. or in some other convenient place, according to their discretion, shall have or either of them shall have authority to inquire, by the people of the same county, as well of them that make such forcible entries in lands and tenements as of them which the same hold with force; and if it be found before any of them that any doth contrary to this statute, then the said justices or justice shall cause to re-seize the lands and seem to have been of opinion that a landlord who entered forcibly into the house of a tenant after the expiration of his term, would be guilty of a forcible entry, both at common law and under the statutes; and the only doubt was whether, supposing there was such a forcible entry upon a tenant after the expiration of the term, the possession thereby obtained was legal. Tindal, C. J., Bosanquet and Erskine, JJ., holding that if the landlord, in making his entry upon the tenant, had been guilty of a breach of a positive statute, or of an offence against the common law, that such violation of the law in making the entry caused the possession thereby gained to be illegal. Coltman, J., holding that although the defendant, if guilty of a forcible entry, was responsible for it in the way of a criminal prosecution, yet that, as against the tenants, who are wrongdoers, and altogether without title, he had obtained by his entry a lawful possession, and might justify in a civil action removing them, in like manner as in the case of any other trespasser. Parke and Alderson, BB., who had each tried the case, were of the same opinion as Coltman, J., and still retain it: Harvey v. Bridges, 14 M. & W. 437; 1 Exch. R. 261. See Butcher v. Butcher, 7 B. & C. 399 (14 E. C. L. R.); 1 M. & R. 220; Hillary v. Gay, 6 C. & P. 284 (25 E. C. L. R.); Davison v. Wilson, 11 Q. B. 890 (63 E. C. L. R.); Burling v. Read, 11 Q. B. 904; Pollen v. Brewer, 7 C. B. (N. S.) 371 (97 E. C. L. R.); which seem to overrule Newton v. Harland as to the entry being illegal.

(h) Per Parke, B., Harvey v. Bridges, supra.

(i) Upon the imposing and levying the fine under this statute of Rich. 2, see 1 Hawk. P. C. c. 64, s. 8; and the cases collected in Bac. Abr. tit. Forcible Entry and Detainer (A.)

in the notes.