The same is the case in riots and routs by the common law; to which the pillory in very enormous cases has been sometimes superadded. (¿) " And by the statute 13 Hen. IV. c. 7. any two justices, together with the sheriff or under-sheriff of the county, may come with the posse comitatus, if need be, and suppress any such riot, assembly, or rout, arrest the rioters, and record upon the spot the nature and circumstances of the whole transaction; which record alone shall be a sufficient conviction of the offenders. In the interpretation of which statute it hath been holden, that all persons, noblemen, and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable. (j) So that our ancient law, previous to the modern riot act, seems pretty well to have guarded against violent breach of the public peace; especially as any riotous assembly on a public or general account, as to redress grievances or pull down all enclosures, and also resisting the king's forces if sent to keep the peace, may amount to overt acts of high treason, by levying war against the king.

7. Nearly related to this head of riots is the offence of tumultuous petitioning; which was carried to an enormous height in the times preceding the grand rebellion. Wherefore by statute 13 Car. II. st. 1. c. 5. it is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assises or quarter sessions; and in London, by the lord mayor, aldermen, and common council, (k) and that no petition shall be delivered by a company of more than ten persons; on pain in either case of [148] incurring a penalty not exceeding 1001. and three months' imprison

ment.12

8. An eighth offence against the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in a former book. (1) But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim. (m) So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusual weapons.12

i 1 Hawk. P. C. 159.

j 1 Hal. P. C. 495. 1 Hal. P. C. 161.

k This may be one reason (among others) why the corporation of London has, since the Restoration, usually taken the lead in petitions to parliament for the alteration of any established law.

1 See Book III. pag. 174, &c.

m 1 Hawk, P. C, 141.

(11) But now the pillory is abolished, by 56 Geo. III. c. 138.

(12) The bill of rights does not virtually repeal this provision. Doug!, 592. See the 57 Geo. III. c. 19. s. 23. for preventing public meetings, &c. near the houses of parliament, or courts of justice in Westminster.

(13) The offence is punished rather as a breach of the peace than an offence against the property of the individual, see Burr. 1701. 1706. 1731. 8 T R. 360.; for no indictment lies for a civil injury, however obnoxious the trespass. Id. The offence is punishable at common law, 3 T. R. 360.; and it is no excuse that the party enters to make a distress, or to enforce a lawful claim, Com. Dig. Forcible Entry, A. 2. 8 T. R. 361. 7 Moore. 574.; nor does it alter the

By the statute 5 Ric. II. st. 1. c. 8. all forcible entries are punished with imprisonment and ransom at the king's will." And by the several sta tutes of 15 Ric. II. c. 2., 8 Hen. VI. c. 9., 31 Eliz. c. I., and 21 Jac. I. c. 15. upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, one or more justices of the peace, taking sufficient power of the county, may go to the place, and there record the force upon his own view, as in case of riots; and upon such conviction may commit the offender to gaol, till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury to try the forcible entry or detainer complained of: and, if the same be found by that jury, then, besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title for the force is the only thing to be tried, punished, and remedied by them: and the same may be done by indictment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands [149] and tenements, for three years immediately preceding. (n)

9. The offence of riding or going armed, with dangerous or unu sual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprisonment during the king's pleasure in like manner, as by the laws of Solon, every Athenian was finable who walked about the city in armour. (0)15

10. Spreading false news, to make discord between the king and nobili. ty, or concerning any great man of the realm, is punishable by common law (p) with fine and imprisonment; which is confirmed by statutes Westm. 1. 3 Edw. I. c. 34., 2 Ric. II. st. 1. c. 5., and 12 Ric. II. c. 11.

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls. (q) Such false and pretended prophecies were punished capitally by statute 1 Edw. VI. c. 12. which was repealed in the reign of queen Mary. And now by the statute 5 Eliz. c. 15. the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

12. Besides actual breaches of the peace, any thing that tends [150] to provoke or excite others to break it, is an offence of the same denomination. Therefore challenges to fight, either by word or

n Holding over by force, where the tenant's title was under a lease, now expired, is said to be a forcible detainer. (Cro. Jac. 199.) o Pott. Antiq b. 1. c. 26. p 2 Inst. 226. 3 Inst. 198.

q "Habent legibus ganctum, si quis quid de republica a finitimus rumore aut fama acceperit, uti ad magistratum deferat, neve cum alio communicet: quod saepe homines temerarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." Cæs. de bell. Gall. lib. €. Cap. 13

Case that no one is within the house, or that possession was ultimately obtained by entreaty. Com. Dig. Forcible Entry, A. 2. 8 T. R. 361. If one person of the company uses violence, all are like guilty. Co. Litt. 2576. See further, Burn J. Forcible Entries.

(14) And a small fine may be imposed. Cald. 416.

(15) Riding with launcegays and armour is also prohibited on pain of forfeiture thereof, 7 Rie. 13.; and of fire and ransom to the king, by 20 Rio II. o., 1.

letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence. (r) 16 If this challenge arises on account of any money won at gaming, or if any as. sault or affray happen upon such account, the offender by statute 9 Ann. c. 14. shall forfeit all his goods to the crown, and suffer two years' imprisonment.'7

13. Of a nature very similar to challenges are libels, libelli famosi, which taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. (s) 18 The direct tendency

r1 Hawk. P. C. 135, 138.

s 1 Hawk. P. C. 193.

(16) The offences of fighting duels, and sending or provoking challenges, are fully considered by Mr. J. Grose, in passing sentence on Rice, convicted on a criminal information for a misdemeanor of the latter kind, 3 East, 581, where the opinions of the earlier writers are collected. It is an offence, though the provocation to fight do not succeed, 6 East. 464. 2 Smith, 550.; and it is a misdemeanor merely to endeavour to provoke another to send a challenge. 6 East, 464. But mere words which, though they may produce a challenge, do not directly tend to that issue, as calling a man a liar, or knave, are not necessarily criminal, 2 Lord Raym 1031. 6 East, 471., though it is probable they would be so if it could be shewn that they were meant to provoke a challenge A challenge is one of those offences for which a criminal information will be granted! by the court of K. B, though this will not be done where the party applying has himself first incit ed the proposal. 1 Burr. 316. Chitty.

(17) This offence may be committed at any time after the playing, by which the money is wan See 4 East, 174. 1 East, P. C. 423

(18) See in general, 3 Chit. Crim. Law, 865, et seq. We have already considered how far the injuries done by slanderous words or libels are redressed by a civil remedy, ante, 3 Book, 128. We will now consider those cases in which slander or libel constitutes an offence for which the party may be proceeded against as a criminal; and these considerations will be classed under the following heads, viz

1. What kind of defamation is indictable.

2. By what mode of expression a libel may be conveyed.

3. What publication is necessary to constitute the offence.

4. The modes of prosecution.

5. The mode of trial, &c.

6. The judgment and punishment.

I. WHAT KIND OF DEFAMATION IS INDICTARLE.-All publications denying the christian religion to be true, or being of a blasphemous nature-all works casting gross ridicule on the church of England-all writings subversive of morality, and tending to inflame the passions by indecent or opprobrious language-are indictable at common law; and publications, the natural tendency of which is to excite sedition, to bring either the constitution of this country or government in general into contempt, are highly criminal. A publication stating Jesus Christ to be an impostor and a murderer, in principle is a libel at common law, for which an indictment will lie. 1 B. & C. 26. and see 3 B. & A. 161. It is libellous to impute falsely in writing, that his majesty or any other person is insane. 2 B. & C. 257 But it has been laid down, that the imputation of a mere error in judgment, even to the sovereign himself, if done "with perfect decency and respect, and without any imputation of bad motives," is not libellous. 2 Camp. 402. The question then with respect to publications on the king and his ministers, is whether bad motives are imputed to them by the writer, and whether the observations are couched in terms decent and respectful. From beace it will follow, that though the tendencies of measures may be discussed with temperance, they must never be imputed to corrupt design; that no member of the government must be charged with corruption, or with a wish to infringe on the liberties of the people: this, indeed, follows from the definition of libel itself, as applied to individuals. It is an aggravated misdemea nor to publish an invective against judges and juries, with a view to bring into suspicion and contempt the administration of justice in the country, still it is lawful, with candour and decency, to discuss the merits or the verdict of a jury, or the decisions of a judge. 1 Campb. 359. An order made by a corporation, and inserted in their books, that a person against whom a jury have given large damages, in an action for a malicious prosecution, has been actuated by motives of pubIc justice, is libellous, as tending to throw discredit on judicial proceedings. 2 T. R. 199.

It is not necessary that any thing criminal should be imputed to the party injured; it is suffi cient if the writer has exhibited him in a ludicrous point of view, marked him out as an object of ridicule or disgust, has, in short, done that which has a natural tendency to excite him to revenge. 2 Wils. 403. Bac. Abr. Libel, A. 2. 4 Taunt. 355. 3 Campb. 214. And, therefore,

of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a

words in themselves not scandalous, become criminal if put in writing so that they tend in any degree to a man's discredit. Hardw. 470 Bac. Abr. Libel, A 2. It is also said that this applies still more strongly to persons employed in public capacities. Id. ibid. So that to publish any thing which "tends in any degree to the discredit" of the ministry, or of public functionaries, whether true or false, is libellous. And this seems to be the true boundary of the freedom of discussion.

We have already, in the 3d Book, 123, 4. considered what publications are justifiable when written in confidence, or fairly commenting on other publications, or in reporting the proceedings of courts of justice.

It is libellous to throw a shade over the memory of the dead, when the writing has a tendency to create a breach of the peace, by exciting the friends and relatives of the deceased to avenge the insult offered to the family. 4 T. R 126.; and see 5 Co 125. Hawk. b. 1. c. 73. s. 1.

As is above observed in the text, truth is no justification of defamatory writings, as far as respects criminal prosecutions, and see 4 B. & A. 275. 2 Saund. by Patteson & Williams, 135. b. n. k. Bul. N. P. 9. Selw. N. P. Libel, 6th edit. 1035. n. 2. 7 T. R 4. 2 Stark. 245.; and it has been urged, that as truth is more likely to provoke animosity than falsehood, it is in fact more libellous. 5 Co. 125.

Malice is an essential requisite to constitute the writing a libel, and an indictable offence. 1 Bla. Rep. 386. 5 Mod. 167. The very publishing of the libel is primâ facie evidence of malice, and will require the defendant to rebut the presumption of it, see Gilb. C. L. & E. 190, 1, 2., where it is laid down, that though malice, in common vulgar acceptation, is a desire of revenge, or a settled anger against a person, yet in its legal sense, it means doing an act without a just cause; and see judgment of court in 3 B. & C 584, 5. 4 B & C. 247. 2 B. & C. 257. Printers and publishers are repeatedly convicted, where it is probable, nay certain, they were ignorant of the contents of the papers they were assisting to circulate. 5 Burr. 2686. 20 St. Tr. 303. Cobbett's edit And it should be observed, that the doctrine of libels, viewed as the subject of criminal prosecution, is founded solely on a regard to public tranquillity: it puts the merits and the feelings of individuals out of the question; and this consideration may, in some degree, elucidate a subject which, in itself, appears so perplexing. And see further as to how far malice is essential, ante, Book, 124 notes.

II. BY WHAT MODE OF EXPRESSION A LIBEL MAY BE CONVEYED.-The most simple idea of libel is where the defamatory matter is reduced into writing. But the exhibition of a picture, intimating that which in print would have been libellous, is equally criminal. 2 Campb. 512. 5 Co. 125.; but see 3 Campb. 323. So the fixing a gallows at a man's door, the burning him in effigy, or the exhibiting hiin in any ignominious manner is indictable as a libel. Hawk. b. 1. c. 73. s. 2. 11 East, 227. and see 5 Co. Rep. 125. Holt on Libel, 114, 115. And in the mayor of Northampton's case, 1 Stra. 422., where the defendant sent lord Halifax a licence to keep a public-house, it was held a libel. But mere opprobrious words, unless they tend immediately to provoke a challenge, or are spoken of a magistrate in the execution of his office, and not in his private character, are not criminal, or punishable in the temporal courts. 3 Salk. 190. 2 Campb. 142. And as to what words spoken of a magistrate are indictable, see 2 Salk. 698. and cases there collected. Stra. 420. 1158, &c.

It should be farther remarked, that if the matter be understood as scandalous, and is calculated to excite ridicule or abhorrence against the party intended, it is libellous, however it may be expressed. 5 East, 463. 1 Price, 11. 17. 13. Irony may convey imputations more effectually than direct assertion; thus it has been holden, that where a man reckons up the acts of charity of another, and then tauntingly adds "You will not play the Jew nor the hypocrite," evidently insinuating that all his munificence arises from the love of ostentatious display, the publication will be libelloas. Hob. 215. So where the writer pretends to hold up the characters of public men to Imitation, by praising them for qualities they are charged with wanting, and which from their situations they would not be expected to possess; as if he sets forth an illiterate general as a great scholar, or a statesman accused of wanting active courage as a gallant soldier, he will be considered as imputing to them the want of those endowments as a disgrace. Hawk. b. 1. c. 73. 9. 4. And the circumstance of initials being substituted for the name of the party libelled will form no excuse to the writer, if his meaning is sufficiently obvious to the reader; for it would he absurd if that which is sufficiently plain to work all the mischief of a malignant slander, and which all who read it understand, should be regarded as too obscure to be visited by justice, or understood by juries and judges, Hawk. b 1. c. 73. s. 5 and, therefore, the declarations of spectators attending the exhibition of a libellous picture, may be admitted as evidence to shew that the parties intended by the figures are known to common observers. 2 Campb. 512. 5 East, 463. 7 Mod 400. The supposed libel must however contain unequivocal expressions of bad

character.

III. WHAT PUBLICATION IS NECESSARY TO CONSTitute Offence.—Without a publication of some kind, the offence of libel is not complete; but in a late case it was questioned, whether the writing and composing a libel with an intent to publish, but not followed by publication, was an indictable offence, 4 B. & A. 95. 3 B. & A. 717.; at all events, it appears that the finding the paper in the hand-writing of the defendant is such prima facie evidence of a publication by him, as to admit the writing to be read to the jury, from which the jury may infer the publica

libel to any one person is a publication in the eye of the law: (†) and therefore the sending an abusive private letter to a man is as much a libel

t Moor. 813.

tion, according to the circumstances before them, 9 Co. 58. 3 Campb. 210. 5 Burr. 2689.; and though there be no publication, yet the sending a letter to the party himself, filled with abusive language, is indictable, because it tends to provoke him to a breach of the peace, in order to revenge the insult he has received. 2 Barnard. 102. Hawk. b. 1. c 73 s. 11. 11 East, 464. 2 Stark. R. 245. The doctrine laid down by lord Coke, that to read a libel, or to desire to hear it read, without a previous knowledge of its malignity, or to repeat, in order to ridicule or cen sure it, in the hearing of others, is not criminally to publish it, 9 Co. 59, b.; and also the doctrine, that to repeat a libel in mere jest and merriment, is not an indictable offence, in Moor, 627. may well be disputed; at least if the mirth be directed against the object and not the au thor of the libel, siuce there is nothing which tends more to exasperate than ridicule. Hawk. b. 1. c. 73. s. 14. The party who writes a libel dictated by another, and has discretion to understand its nature-he who originally procures it to be composed-be who actually composes it-he who prints or procures it to be printed-he who publishes or causes it to be published, all, in short, who assist in framing or in diffusing it, are implicated in the guilt of the offence. Salk. 417. Hawk. b. 1. c. 73. s. 10. 2 Campb. 512.; but see 3 Campb. 323. The mere delivery of a newspaper to the officer at the stamp-office is a publication. 4 B. & C. 35. If A. sends a manuscript to the printer of a periodical publication, and does not restrain the printing or pub. lishing of it, and he prints and publishes it in that publication, A. is liable as the publisher. 5 Dow. 201. But if a libel be stolen, this is no publication. Hob. 62. And it is no excuse for a printer or publisher, that he was ignorant that he was affording the means of circulating; and even though he is absent from the office or shop at the time, he will be held criminally liable, 20 St. Tr. 803., and see Cuthell's case, Ersk. Speeches, and Lovell's case, and 3 M. & S. 11, 12, &c. Neither is it any excuse that a similar libel was published on a former occasion by other persons who were not prosecuted, 5 T. R. 436. and see further as to evidence of publication, 3 Chit. Crim. Law, 875, d. e. 876.

IV. MODES OF PROSECUTION.-In cases where the libel is directed against the christian relié gion, or be of a blasphemous nature, or against the king or his government, the offender is usually prosecuted by ex officio information in the king's bench, filed by the attorney-general: the modes of proceeding in which case are detailed in the first Book; and it is usual to grant a criminal information for a libel on a public body of men upon an affidavit stating the publication by the de fendant, though there be no known prosecutor, 2 Barnard. 138. 166. 2 Swanst. 503.; and in a late case, the court granted a criminal information against the publisher of a newspaper for a li. bel reflecting on the clergy of a particular diocese, and generally upon the church of England, though no individual prosecutor was named, and though the libellous matter was not negatived by affidavit, and it was there considered sufficient to state the publication by the defendant. 1 Dow. & Ry. 197. 5 B. & A. 595. S. C. When the slander more immediately affects an individual, he may either prefer a bill of indictment in the usual course, or move for leave to file a criminal information in the crown-office: but the court will exert a discretionary power in deciding whether they will thus sanction a prosecution, and will frequently deny it where an indict. ment might well be supported. Thus, where the application is made a long time after the publication complained of, where too great strictness would discourage useful investigations, or where the libellous matter on an individual is true, an information will not be granted, 1 Stra. 498. Andr. 290.; and therefore, where the libel contains a direct charge, which it lies in the power of the applicant to deny if false, the court will require a positive affidavit, that the charge is unfounded, Doug. 284. 2 Chit. Rep. 162.; but where the person slandered is in a foreign country at a great distance, so that he cannot make affidavit; where the allegations of the libel go to general character and not to particular facts, to which it would be absurd to require a denial; where the imputation is of seditious language in parliament, which no one can impute, because nothing that passes there is liable to question, such affidavit will not be required. Dougl. 387. 2 Chit. Rep. 162. ; and we have just seen, that this affidavit is not necessary where the libel is on a public body, 5 B. & A. 595. 1 Dow. & Ry. 197.; and cases there cited. An indictment seems, however, to be the most easy, as it is the most constitutional remedy. Every copy of a libel sold by a party is a separate publication, and therefore subjects him to a distinct prose cution; and although the defendant be prosecuted by an information filed by the attorney-gene. ral as well as by an indictment on the prosecution of a different person for different copies of the same libel, the court will not restrain the proceedings. 1 Chit. Rep. 451. A justice of the peace has authority to issue his warrant for the arrest of a party charged with having published a libel. 1 B. & B. 548. The court of chancery having no jurisdiction to prevent crimes, except in the protection of infants, cannot by injunction restrain the publication of a letter as painful to the feelings of a party. 2 Swanst. Rep. 413. The cases of injunction against publishers of letters, on the ground of copyright, or other circumstances, are distinguishable. 2 Swanst. 402. 2 Atk. 342, Amb. 737. By the 38 Geo. III. c. 78. the editors of newspapers are pat under various regulations by which they may be more easily brought to punishment for any seditious or mischievous publication.

V. MODE OF TRIAL, &c.—For a long time it was warmly contested who were the proper judgc9 of the libellous character of the matter charged; the court or the jury. Cases there unques