STATE OF NORTH CAROLINA, ) SUPERIOR COURT OF LAW, ) Franklin County. ) Spring Term, 1833.

The jurors for the State, upon their oath present, that Henry N. Jasper, late of the county of Franklin aforesaid, on the third day of March (the said third day being the Sabbath day), in the year one thousand eight hundred and thirty-three, and during other days and times, both before and after the day aforesaid, being a person regardless of the duties and solemnities of the public worship of God, and of the due observation of the Lord's day at a certain Baptist meeting house, commonly called "Haywood's meeting house," in the county aforesaid, did willfully interrupt and disturb a certain assembly of people there met for the public worship of God, within the place of their assembly, to wit: within the meeting house aforesaid, in the county aforesaid, on the third day of March aforesaid, and on the said other days and times, by then and there talking and laughing in a loud voice, and by then and there making divers ridiculous and indecent actions and grimaces, and otherwise misbehaving himself during the performance of divine service in said meeting house to the great disturbance and insult of the orderly people there, and on the said other days and times, then and there assembled, and against the peace and dignity of the State. R. M. SAUNDERS, Att.-Gen.

The defendant being convicted of the offense charged in the indictment, a motion in arrest of judgment was submitted, which being sustained by his Honor Judge Martin, the Attorney-General appealed.

(324) RUFFIN, C. J.

The defendant is indicted at common law for disturbing a congregation of religious persons assembled at their church or place of worship, and engaged in the public worship of Almighty God, by laughing and talking in a loud voice, and divers indecent actions and grimaces, during the performance of divine service. The offense is not charged as a nuisance, but as a specific misdemeanor, in itself. The defendant has been convicted, and the question is, whether the indictment can be supported and the State have judgment.

The Constitution of this State, section 34, provides there shall be no establishment of any religious church in preference to another; neither shall any person be compelled to attend any place of worship, contrary to his own faith; but all persons shall be at liberty to exercise their own mode of worship. All constraints upon the conscience of individuals are thus removed whether they be in their nature positive, that the citizen shall worship in a particular form or profess a particular creed or negative, that he shall not. The provision does not profess to confer this right. It is worded, so as to show that it is acknowlegded [acknowledged] as pre-existing. The right is declared in the Bill of Rights to be a natural and unalienable right in all men, section 19. Its sanctity in all time to come, is guaranteed by the Constitution. The worship of God is not therein treated as indifferent, either in reference to the welfare of individuals, or the common interest. On the contrary, it is assumed to be a moral duty incumbent upon all men, and their highest privilege, as intelligent and accountable beings; a duty, that is best performed, both in honor to God, the comfort of each man and the peace and order of society, when that natural privilege is subjected to no legal restraints nor allowed to be disturbed by any person, either with or without the pretense of authority. While, therefore, no church shall be established in preference to another, all churches are established for the purposes of the security of the worshipers from penalties, or from molestation in the act of worship. The guaranty of religious freedom to all the citizens, supposes each one of them to have an interest in it, and to be conscious of religious (325) obligation; and the quiet of the body public demands that the religion which the citizens profess, and which it is supposed they would profess even against the laws of human institutions, may be safely professed, and sincerely exercised in public assemblies. For all religion is necessarily founded upon, or productive of a principle of diffusive benevolence towards our fellow creatures; and its practice consists so much in its professors imparting to, and receiving from each other, instructions both in its doctrines upon points of faith, and its moral precepts, that the idea of practical religion cannot be separated from that of the assemblage of its professors for communion of doctrine, of charity, and of worship. Hence the phrase, "place of public worship" is appropriately introduced into the Constitution, and could not without defeating the general object of the provision, have been omitted, in that clause of the section which is restrictive of the power to compel individuals to any particular worship. So, the following clause that all shall be free "to exercise their own mode of worship," must be considered as embracing both the place of worship, and public worship in assemblies; and that it will be practiced by individuals without the injunctions of the law, or any coercion but that of conscience.

The question remains, whether the disturbance of the practice of their duties, and of the exercise of their acknowledged privileges be an offense punishable by indictment, without a statute.

It is undoubtedly so in England, with respect to the established church; and this from a regard to the interest of religion, in which, each and every person in the Kingdom, from the Sovereign to the humblest subject, has a deep concern. The indictment, therefore, need not state any other consequence, as flowing from the misconduct of the accused, such as that it was to the nuisance of the King's subjects; but is sufficient, if it charge the disturbance of a religious assembly, as the offense per se. (1 Hawks., P. C. B., 1, c. 32, sec. 4.) It is true, that is not the case with respect to those classes of (326) persons called in their law, dissenters; for whose protection several statutes (I W. and M., c. 18, and 52 Geo. III, c. 155), have been passed. But that is upon the ground, that the principle of their law is, that such religious principles and the exercise of such worship is against the interest of the State. They were once altogether unlawful; when declared to be otherwise, they were merely tolerated; and those thus permitted to worship, must content themselves with the permission, in the extent to which it is given. It was, however, soon found, that it was necessary, if permitted at all, to secure it more effectually; not barely for the sake of the weak consciences of the dissenters themselves, but for that of the public peace. A disturbance of their public worship is therefore made a crime by those statutes. But in relation to the Church established by law, no such provision was necessary; for that being deemed in its establishment, of common right and of common necessity, any disturbance of it was by consequence, held to be a common injury and public wrong. Now, our ancestors declare, that no law is required to establish any mode of worship. They hold, that God has established his own Church. They do not tolerate any branch of it. They say, men have no power over the subject, further than to prevent persons, under the pretense of religious discourse, from disseminating sedition or treason; that religion needs no aid from the civil power, but the guaranty of its freedom from interruption, either by unjust laws or lawless force, or wantonness of individuals. Against the former, the Constitution is an express warrant; and by a necessary construction from that, as it seems to me, it equally forbids the latter. In this view, therefore, that every man is interested in the worship of God, and that the disturbance of it is an injury to the whole community, I think the indictment sufficient. In the further view, that the exercise of religious worship calls together large multitudes, whose assembly is lawful, and a duty in religious sense, and a public duty in the sense of the Constitution, the disturbance of whom, has an immediate tendency to bitter discords, the violent (327) commotion of neighborhoods, and a breach of the peace, I also think the indictment sufficient.

This view of the subject is sanctioned by a decision of the very point by the Constitutional Court of South Carolina, in Bell v. Graham (1 Nott McCord, 278,) and in Commonwealth v. Hoxey ( 16 Mass. 385), an indictment at common law, for a disturbance of a town meeting for the choice of selectmen, was supported, upon the ground that such acts tended to a breach of the peace, and to the prevention of elections which were necessary to the orderly government of the town. Not less certainly, does the public worship of Almighty God involve the good order of political society, and its disturbance produce wrath and violence.

As to the objection that the acts are laid on the third day of March, and on other days and times both before and after, the distinction is between laying them at several times without any certain day as to any one of the acts, and laying them, as here, on a day certain, and others uncertain. In the former, the indictment is bad altogether ( Shaw, 389; 4 Mod., 103), but in the latter, it is void only as to the uncertain days, and sufficient as to the parts to which the certain time is annexed. (10 Mod., 336; 2 Hawk., P. C., B. 2, c. 25, 5, 82.)

The opinion of the Court, therefore, is, that the Superior Court erred in arresting the judgment, and that the same be certified to that Court, that it may proceed to judgment on the defendant.

PER CURIAM. Judgment reversed.

Cited: S. v. Swink, 20 N.C. 493; S. v. Fisher, 25 N.C. 114; Holland v. Peck, 37 N.C. 259; S. v. Ramsey, 78 N.C. 453.

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