the Book of Common Prayer, nor at any other times without good cause, to be allowed by the minister of the place and by themselves (r). Again: although the soil of the churchyard be in the parson, and the churchwardens may not perhaps feel themselves called upon to interfere, if he merely turn a horse or a few sheep into the churchyard to pasture there; yet if he profane the place by keeping swine or cattle therein, permitting them to turn up the soil, and disregarding the feelings of those whose relations are buried in the ground, or by converting the church-porch into a stable for his horses, he will have incurred ecclesiastical censures, and it will be the duty of the churchwardens to endeavour at once to put a stop to such irreverent conduct, and at all events to present him at the next visitation (s); the law is the same if the soil be otherwise unnecessarily disturbed, or the churchyard violated in any other manner (t). So, if the parson proceed to pull down the walls of the churchyard, to stop up a church path therein, or to do any other injury thereto, he should be presented at the next visitation (t). And the churchwardens may also obtain from the (r) Can. 88. It seems, however, to be very questionable, whether a churchwarden has the right, by virtue of his office, to turn a person out of the church or churchyard for misconduct, at a time when no service of the church is going on. In a recent case, the court of Exchequer expressed an opinion that a churchwarden had no such inherent right, and that he could only justify such an act under the rector as freeholder, and after a request to the party to leave. See Worth v. Terrington, 13 M. & W. 781. (8) Burgoyne v. Free, D. D. 1 Hagg. C. R. 456. (t) Bennett v. Bonaker, 2 Hagg. E. R. 25. Court of Chancery an injunction to restrain him from such illegal conduct (u). The churchwardens are also to take care that none contend or quarrel in the church or churchyard, or upon any occasion make any broil or brawling there (v). By statute 5 & 6 Ed. 6, c. 4, s. 1, it is enacted, that if any person shall, by words only, chide or brawl in any church or churchyard, the ordinary, on proof of two witnesses, may suspend every layman, being an offender, ab ingressu ecclesiæ, (i. e. from entering into the church), and every clergyman from the ministration of his office, so long as he, shall think meet. And by s. 2, it is enacted, that if any shall smite or lay any violent hands on another in any church or churchyard, he shall be deemed ipso facto excommunicate, and be excluded from the fellowship and company of Christ's congregation. This statute did not create the offence of brawling, which existed at common law. "The law, not merely the statute of Ed. 6, but the general ecclesiastical law, protects the sanctity of public worship, and still more endeavours to prevent every circumstance which may lead to the disturbance of persons engaged in solemn acts of devotion. It prohibits all quarrelling, chiding, and brawling in the church or churchyard, and requires decent and orderly behaviour (w):" and (u) Walter and Montague v. Lamprell, 2 Curt. 253. Marriott v. Tarpley, 9 Sim. 279. See also Quilter v. Newton, Carth. 151. (v) Marriott v. Tarpley, 9 Sim. 279. (w) Per Sir John Nicholl, in Newberry v. Goodwin, 1 Phill. 282. See also Palmer v. Roffey, 2 Add. 144. Сох т. proceedings may still, notwithstanding the statute, be taken at common law, for wherever a statute leaves an offence as it found it, and only introduces additional punishment, a party may proceed either on the statute, or on the ancient law (x). The Ecclesiastical Courts have jurisdiction over all cases of brawling and smiting within the precincts of the church and churchyard ratione loci: and provocation on the part of the promoter constitutes no defence, for the object is not to protect the individual, but the sacredness of the place (y); in all such cases, where two persons are implicated, which is most to blame is nearly immaterial; each is bound to abstain, and each, failing to abstain, incurs a like penalty (z). A greater latitude of expression and manner, however, is allowed at vestry meetings than in the church, and "that may be chiding and brawling in the church, which would not be so in the vestry" (a). In like manner, that may be indecent and censurable during divine service, which would not be so when the service was ended (b); or, on the contrary, that may be indecent after the service, which would not be so during its continuance (c). (x) Wenmouth v. Collins, Lord Raym. 850. Ex parte Williams, 4 B. & C. 315. (y) Austen v. Dagger, 3 Phill. 122; Jarman v. Bagster, 3 Hagg. 350. (z) Palmer v. Roffey, 2 Add. 131; Ibid. 306. And see Burder v. Hale, 6 N. E. C. 611. (a) Per Lord Stowell in Hutchins v. Denziloe, 1 Hagg. C. R. 185. See also Taylor v. (c) See the observations of Parke, B., in Worth v. Terrington, supra. In that case the learned judge is made to say, "it is plain that an act may be indecent during divine service, which is not so when service is SECTION III. On the Repairs of the Chancel, &c. Although the churchwardens be not charged with the repairs of the chancel, yet they are with the supervisal both of that and the minister's house, to see that neither of them be permitted to dilapidate, or fall into decay; and when any such dilapidations shall happen in either of them, if no care be taken to repair them, they are to make presentment thereof at the next visitation (d). The duty of effecting the repairs of the chancel, as before observed, lies upon the parson, whether appropriator, impropriator, or instituted rector (e), except in some churches, where the vicar is by special composition bound to repair, and then the vicar hath the freehold of the chancel, as well as of the body of the church and churchyard; the former by virtue of this composition, and the latter by virtue of his induction. For every vicar, when he is inducted into the church, takes possession of the body of the church and the churchyard, as of his freehold, and is then, as it were, by livery of seisin, admitted thereto, as the rector is by like induction to the whole church (ƒ). As the soil and feed of the churchyard are in at an end. My brother Rolfe ing divine service utters the cluded." See the report of this the minister, so also are the trees growing therein; but he is not to cut them down unless for necessary repairs of the chancel, or else that he shall think fit, out of charity and kindness, to allow them to the parishioners for the repair of the body of the church; but where they used to be topped, the toppings belong to the minister (g). If an impropriator have the rectory, but the vicar is bound to repair, he shall have the trees in the churchyard to repair the chancel and parsonage, with the pews, barns, or outhouses thereto belonging (h). SECTION IV. On the right of the Churchwardens to access to the Church, and their Power and Duty with reference to the Disposal of the Goods and Utensils of the Church, and as to the setting up and removing of Fixtures, Monuments, Tombs, &c. On the Ringing of the Church Bells. As the churchwardens are bound to keep the church in repair, both externally and internally, and to see that all necessary things are provided for the use of the parishioners, and for the due. celebration of the divine offices, they ought, of course, to have free access to the church at all reasonable times; but, the freehold of the church (g) Prid. 33; 35 Edw. 1, stat. 2, commonly called Statutum ne Rector prosternat arbores in cemeterio. (h) Strachy v. Francis, 2 Atk, 217; See Tyr. Prid. 28. |