The punishment for the person embracing is by fine and imprisonment; and for the jurors so embraced, if it be by taking money, the punishment is (by divers statutes of the reign of Edward III.) perpetual infamy, imprisonment for a year, and forfeiture of the tenfold value."

19. The false verdict of jurors, whether occasioned by embracery or not, was anciently considered as criminal, and therefore exemplarily pun. ished by attaint in the manner formerly mentioned. (s)

20. Another offence of the same species is the negligence of public offi cers, intrusted with the administration of justice, as sheriffs, coroners, con.

stables, and the like, which makes the offender liable to be fined; [141] and in very notorious cases will amount to a forfeiture of his office,

if it be a beneficial one. (t;30 Also the omitting to apprehend persons offering stolen iron, lead, and other metals to sale, is a misdemesnor, and punishable by a stated fine, or imprisonment, in pursuance of the sta tuto 29 Geo. II. c. 30.

21. There is yet another offence against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king's bench (according to the rank of the offenders), it is sure to be severely punished with forfeiture of their offices (either consequential or immediate), fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed.3

22. Lastly, extortion is an abuse of public justice, which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or be fore it is due. (u)33 The punishment is fine and imprisonment, and some. times a forfeiture of the office. 33

s See Book III. p. 402, 403.

t1 Hawk. P. C. 168.

ui Hawk. P. C. 170.

(29) By the 6 Geo. IV. c. 50. s. 61. the offence of embracery of jurors, and jurors wilfully and corruptly consenting thereto, is punishable by fine and imprisonment.

(30) As to the liabilities of magistrates for misconduct, &c. see ante, 1 Book, 354. n. $2.; of coroners ente, 1 Book, 348. n. 25.; of gaolers, id. 346. n. 18.; of surveyors, ante, 1 Book, 3 359. n. 38.; of overseers, &c. id 360. n. 44.

(31) For actions and prosecutions against justices of the peace, see 1 Book, p. 354. n. S3. (32) By the statute of 3 Edw. I. c. 16. in affirmance of the ancient law, it is enacted, that no sheriff, nor other bigh officer, shall take any reward to do his office, but shall be paid of that which they take of the king; and that he who so doth, shall yield twice as much, and shall be punished at the king's pleasure This act, which thus particularly names the sheriff, extends to every ministerial officer concerned in the administration or execution of justice, the common good of the subject, or the service of the king, 2 Inst. 209. Where a statute annexes a fee to an office, it will be extortion to take more than it specifies 2 Inst. 210. And it seems that if a clerk in the crown-office demands 13s. 4d. from every defendant who pleads to a joint information, or above 28. where several are indicted together, for the venire and entry of the plea for all of them, he will be liable to be indicted. 3 Mod. 247. S Inst. 150 But stated and known fees allowed by courts of justice to their own officers are legal, and may be properly demanded. Co. Litt. $68. b. And, therefore, before the abolition of gaol fees by 14 Geo. III. c. 20. on a prisoner's discharge, the bar fee of 20d was always allowed to the sheriff 2 Inst. 210. Nor is it criminal for an officer to take a reward voluntarily offered to him for the more diligent or expeditious performance of his duty. 2 Inst. 210, 11. But a promise to pay him money for any act of duty which the law does not suffer him to receive, is absolutely void, however freely it may have been given 2 Burr. 924 1 Bla. Rep. 204. There is no accessories in extortion. 1 Stra. 75. Chitty. __(33) By 3 Ed. I. c. 26. the defendant shall render double to the party aggrieved, and be punished at the king's pleasure. In the construction of this enactment, it has been bolden, that the double value cannot be recovered upon an indictment, but must be sued for by action. Cro, Car.

CHAP. XI.

OF OFFENCES AGAINST THE PUBLIC
PEACE.

1. WE are next to consider offences against the public peace; the conser⚫ vation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large. (a) These offences are either such as are an actual breach of the peace; or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes and, particularly,

1. The riotous assembling of twelve1 persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c. 5., when the king was a minor, and a change in religion to be effected; but that statute was repealed by statute 1 Mar. c. 1., among the other treasons created since the 25 Edw. III.: though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. st. 2. c. 12., which made the same offence a single felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons were commanded by proclamation to disperse, and they did not, it was by the statute of Mary made felony, but within the benefit of the clergy; and also the act indemnified the peace officers and their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents: but at first it was made only for a year, and was afterwards continu- [148] ed for that queen's life. And, by statute 1 Eliz. c. 16. when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James the First to the death of queen Anne, it was never once thought expedient to revive it but, in the first year of George the First, it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large addi. tions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute 1 Geo. I. c. 5. enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of

a Book I. p. 118 268. 350.

448. The terms," at the king's pleasure," signify here, as in other provisions where they occur, the discretion of the justices, who are to pronounce the sentence. 2 Inst. 210.

(1) It does not seem necessary that twelve persons should have been guilty, to constitute a riotous assembly within the acts. See Dongl. 1 ed. 673. 2 ed. 699. 6 T. R. 14. 2 Sannd. 877. b. A 12

a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. And farther, if the reading of the proclamation be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hinderers are felons without benefit of clergy and all persons to whom such proclamation ought to have been made, and knowing of such hinderance, and not dispersing, are felons without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfortunately⚫killed in the endeavour to disperse them being copied from the act of queen Mary. And, by a subsequent clause of the new act, if any person, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy.2

2. By statute 1 Hen. VII. c. 7. unlawful hunting in any legal forest, park, or warren, not being the king's property, by night, or with painted faces, was declared to be single felony. But now by the statute 9 Geo. I. c. 22., to appear armed in any inclosed forest or place where deer are usual. ly kept, or in any warren for hares or conies, or in any high road, open

heath, common, or down, by day or night, with faces blacked or [144] otherwise disguised, or (being so disguised) to hunt, wound, kill, or

steal any deer, to rob a warren, to steal fish, or to procure by gift or promise of reward any person to join them in such unlawful act, is fe. lony without benefit of clergy. I mention these offences in this place, not on account of the damage thereby done to private property, but of the manner in which that damage is committed: namely, with the face blacked or with other disguise, and being armed with offensive weapons, to the breach of the public peace, and the terror of his majesty's subjects.

3. Also by the same statute 9 Geo. I. c. 22., amended by statute 27 Geo. II. c. 15., knowingly to send any letter without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threatening (without any demand) to kill any of the king's subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy.* This offence was formerly high treason by the statute 8 Hen. V. c. 6.

(2) By the 52 Geo. III. c. 130. rioters pulling down, or demolishing, or beginning so to do, buildings, engines, &c. used in trades or manufactories, will be guilty of felony without clergy. Burning a building is within the act. Holt C. N. P. 466.

By the 56 Geo. III. c. 125. rioters pulling down any engines, &c. belonging to the collieries, &c. are felons without clergy.

These acts give a right to the party grieved, to recover damages in an action against the hundred, after complying with the requisites pointed out in these statutes; and the same redress is given by the 41 Geo. III. c. 24 relating to the demolition of mills, &c.; and the 57 Geo. III. c. 19. as to the demolishing any buildings whatever, or furniture, &c. therein: but this remedy has been already considered, ante, 3 Book, 161. n. 16. As to seditious meetings, see ante, 88. n. 14. As to tumultuous petitioning, post, 147.

(3) But now by the 4 Geo IV. c 54. clergy is restored, and there are other acts in part repealing and amending the 9 Geo. I.; but as they relate to the stealing of the deer, &c. they will be considered hereafter. See post, 147 n. 235.

(4) This offence having become of frequent occurrence, and is of so diabolical a nature, that a variety of acts have been passed, since the 30 Geo. II. to put a stop to it. The principal act now in force relative thereto, is the 4 Geo. IV. c. 54. all the previous acts (except the 52 Geo. III. c. 64 6.1) being repealed by the third section; which, after reciting that by statute 9 Geo. I. c. 22. (the black act) it is enacted, that the knowingly sending any letter, without any name subscribed thereto, or signed with a fictitious name, demanding money, venison, or other valuablo thing, or rescuing any person lawfully in custody of any officer or other person, for such offence, or by gift of promise of money, or other reward, procuring another to join in such act, is felony, and

5

4. To pull down or destroy any lock, sluice, or floodgate erected by au thority of parliament on a navigable river, is by statute 1 Geo. II. st. 2. c. 19. made felony, punishable with transportation for seven years. By the statute 8 Geo. II. c. 20., the offence of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of clergy; and it may be inquired of and tried in any adjacent county, as if the fact had been therein committed. By the statute 4 Geo. III. c. 12., maliciously to damage or destroy any banks, sluices, or other works on such navigable river, to open the floodgates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years." And by the statute 7 Geo. III. c. 40. (which repeals all former acts relating to turnpikes), maliciously to pull down or otherwise de. [145] stroy any turnpike-gate or fence, toll-house or weighing-engine thereunto belonging, erected by authority of parliament, or to rescue any person in custody for the same is made felony without benefit of clergy; and the indictment may be inquired of and tried in any adjacent county. The remaining offences against the public peace are merely misde mesnors, and no felonies; as,

5. Affrays (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of his majesty's subjects: for, if the fighting be in private, it is no affray but an assault. (b) Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue. (c) But more especially the constable, or other similar officer, however denomi nated, is bound to keep the peace; and to that purpose may break open doors to suppress an affray, or apprehend the affrayers; and may either carry them before a justice, or imprison them by his own authority for a convenient space till the heat is over; and may then perhaps also make them find sureties for the peace. (d) The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case; for, where there is any material aggravation, the punishment proportionably increases. As where two persons coolly and deliberately engage in a duel; this being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray, though no mischief has actually ensued. (e) Another aggravation is, when thereby the officers of justice are disturbed in the due execution of their office : or where a respect to the particular place ought to restrain and regulate men's behaviour, more than in common ones; as in the king's court, and the

b 1 Hawk. P. C. 134.

d 1 Hawk. P. C. 137.

c Ibid. 138.

e Ibid. 153.

punishable with death, as in cases of felony without clergy; and that by stat 27 Geo. II. c. 15. it is enacted, that the knowingly sending any letter without any name subscribed thereto, or signed with a fictitious name or names, letter or letters, threatening to kill or murder any subject, or to burn their houses, out-houses, barns, stacks of corn or grain, hay or straw, though no money or venison, or other valuable thing, be demanded, in or by such letter or letters: or rescuing any person lawfully in custody of any officer or other person for the said offence, is felony, and pun ishable with death, as in felony without clergy.

(5) But now by 1 Geo. IV. c. 115. s. 1. clergy is restored, and the offender may be transported for life, or not less than seven years, or may be imprisoned with or without hard labour for not inore than seven years.

(6) The 19 Geo. II. c. 22. and 54 Geo. III. c. 159. provide for the protection of havens, ports, barbours, moorings, &c.

(7) This act was repealed by the 13 Geo. III. c. 84., which was also repealed by the 3 Geo. IV. c. 126. and by the latter act, sec. 148 the offence is a felony punishable with seven years Cransportation, or not more than three years' imprisonment. 01

VOL. II.

[146] the like. And upon the same account also all affrays in a church or church-yard are esteemed very heinous offences, as being indignities to him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted by statute 5 & 6 Edw. VI. e. 4., that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiae; and, if a clerk in orders, from the ministration of his office during pleasure. And if any person in such church or church-yard proceeds to smite or lay violent hands upon another, he shall be excommu. nicated ipso facto; or if he strikes him with a weapon, or draws any weapon with intent to strike, he shall, besides excommunication (being convicted by a jury), have one of his ears cut off: or, having no ears, be brand. ed with the letter F in his cheek. Two persons may be guilty of an affray but,

6. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down enclosures, to de. stroy a warren or the game therein; and part without doing it, or making any motion towards it. (f) A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of way; and make some advances towards it. (g) A riot is where three or more actually do an unlawful act of violence, either with or without a common cause of quarrel; (h) as if they beat a man; or hunt and kill game in another's park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing

a nusance, in a violent and tumultuous manner. The punishment [147] of unlawful assemblies, if to the number of twelve, we have just now

seen, may be capital, according to the circumstances that attend it; but from the number of three to eleven, is by fine and imprisonment only.10

(8) An assembly of a man's friends for the defence of his person against those who threaten to beat him if he go to such a market, &c. is unlawful, for he who is in fear of such insults must provide for his safety by demanding the surety of the peace against the persons by whom he is threatened, and not make use of such violent methods which cannot but be attended with the danger of raising tumults and disorders, to the disturbance of the public peace. But an assembly of a man's friends at his own house for the defence of the possession of it against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is permitted by law, for a man's house is looked upon as his castle. He is not, how ever, to arm himself and assemble his friends in defence of his close. 1 Russ. 362.

(9) To constitute a riot, the parties must act without any authority to give colour to their proceedings, for a sheriff, constable, or even a private individual, are not only permitted, but enjoined to raise a number of people to suppress rioters, &c. 2 Hawk. c 65 8 2. The intention also with which the parties assemble, or at least act, must be unlawful, for if a sudden disturbance arise among persons met together for an innocent purpose, they will be guilty of a mere affray, though if they form parties, and engage in any violent proceedings, with promises of mutual assistance; or if they are impelled with a sudden disposition to demolish a house or other building, there can be no doubt they are rioters, and will not be excused by the propriety of their original design. 2 Hawk. c. 65, s. 3. But though there must be an evil intention, whether premeditated or otherwise, the object of the riot itself may be perfectly lawful; as to obtain entry into lands to which one of the parties has a rightful claim, for the law will not, as we have before seen, ante, 3 Book, 5. n. 4. suffer private individuals to disturb the peace, by obtaining that redress by force, which the law would regularly award him. 2 Hawk. c. 65. s. 7. 8 T. R. 357. 364.

Women are punishable as rioters, but infants under the age of discretion are not. 1 Hawk. c. 65. s. 44. In a riot all are principals, and therefore if any person encourages or promotes, or takes part in a riot, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter. 2 Camp. 370. (10) By the 3 Geo. IV. c. 114, hard labour may be imposed.

Chitty