it contained many severe injunctions against bribery, as well for selling a man's vote in the senate or other public assembly, as for the bartering of common justice, yet, by a strange indulgence in one instance, it tacitly encouraged this practice: allowing the magistrate to receive small presents, provided they did not in the whole exceed a hundred crowns in the year: (m) not considering the insinuating nature and gigantic progress of this vice, when once admitted. Plato therefore more wisely, in his ideal republic, (n) *orders those who take presents for doing their duty to be punished in the severest man- [ *140] ner: and by the laws of Athens he that offered was also prosecuted, as well as he that received a bribe. (0) In England this offence of taking bribes is punished, in inferior officers, with fine and imprisonment; and in those who offer a bribe, though not taken, the same. (p) But in judges, especially the superior ones, it hath been always looked upon as so heinous an offence, that the chief justice Thorpe was hanged for it in the reign of Edward III. By a statute (g) 11 Hen. IV, all judges and officers of the king, convicted of bribery, shall forfeit treble the bribe, be punished at the king's will, and be discharged from the king's service forever. (25) And some notable examples have been made in parliament, of persons in the highest stations, and otherwise very eminent and able, contaminated with this sordid vice. (26) 18. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like. () The punishment for the person embracing is by fine and imprisonment; and for the juror 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. (27) 19. The false verdict of jurors, whether occasioned by embracery or not, was anciently considered as criminal, and therefore exemplarily punished by attaint in the manner formerly mentioned. (s) 20. Another offence of the same species is the negligence of public officers, intrusted with the administration of justice, as sheriffs, coroners, constables and the like, which makes the offender liable to be fined; and in very notorious cases will amount to a forfeiture of his office, if it be a beneficial one. (t) Also the omitting to apprehend persons offering stolen *iron, lead and other metals to sale, is a misdemeanor, and punishable by a stated fine, or im- [*141] prisonment, in pursuance of the statute 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 the 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. (28) (m) Ff. 48, 11, 6. (q) Ibid. 146. (n) De Leg. 1. 12. (0) Pott. Antiq. b. 1, c. 23. (p) 3 Inst. 147. (25) This statute is repealed by 26 and 27 Vic. c. 125. (26) [See the proceedings against Lord Bacon, 2 St. Tr. 1087, and against Lord Macclesfield, 16 id. 767.] (27) [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.] (28) [On motions for informations against magistrates, the question is, not whether the act done might on full investigation be found to be strictly right, but whether it proceeded from oppressive, dishonest, or corrupt motives (under which fear and favor may generally be included), or from mistake or error; in either of the latter cases, the court will not grant a rule. Rex v. Barron, 3 B. and A. 432. That case seems to lay down the general rule upon this subject clearly and definitively.] 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 before it is due. (u) The punishment is fine and imprisonment, and sometimes a forfeiture of the office. (29) CHAPTER XI. OF OFFENCES AGAINST THE PUBLIC PEACE. WE are next to consider offences against the public peace; the conservation 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 twelve (1) persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 and 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 the statute 1 Mar. c. 1, among the other treasons created since the 25 Edw. III: though the prohibition was in substance reenacted, 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 clergy; and also the act indemnified the peace officers and their [*143] assistants, if they killed any of the mob in endeavoring 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 continued for the 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 additions. 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 town, shall think proper to command them, by proclamation, to disperse, (29) Extorting an agreement to pay money or deliver something of value seems not suffi cient to make out the offence. Commonwealth v. Cony, 2 Mass. 523; Commonwealth v. Pease, 16 Mass. 91. Nor does the receiving of a reward voluntarily given. State v. Stotts, 5 Blackf. 460; Evans v. Trenton, 4 Zab. 764. A custom to take larger fees than the law permits is no defence to the officer who has demanded and received them. Lincoln v. Shaw, 17 Mass. 410; Commonwealth v. Bagley, 7 Pick. 279. The taking must be wilful and corrupt. State v. Gardner, 2 Mo. 22; People v. Coon, 15 Wend. 277. (1) [It does not seem necessary that twelve persons should have been guilty, to constitute a riotous assembly within the acts. See Doug. 1st ed. 673; id. 2d ed. 699; 5 T. R. 14; 2 Saund. 377, b. n. 12.] if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony, without benefit of clergy. (2) 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. (3) 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, [*144] to appear armed in any inclosed forest or place, where deer are usually 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 otherwise disguised, or (being so disguised) to hunt, wound, kill, or steal any deer, to rob a warren, or to steal fish, or to procure, by gift or promise of reward, any person to join them in such unlawful act, is felony, without benefit of clergy. (4) 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. (5) This offence was formerly high treason by the statute 8 Hen. VI, c. 6. 4. To pull down or destroy any lock, sluice or floodgate, erected by authority 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 flood-gates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years. And by statute 7 Geo. III, c. 40* *(which repeals all former acts relating to turnpikes), maliciously to pull down [*145] or otherwise destroy 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. (6) The remaining offences against the public peace are merely misdemeanors 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 (2) The punishment is now reduced to transportation or imprisonment (statute 1 Vic. c. 91, or penal servitude may be substituted. Statute 16 and 17 Vic. c. 99. (3) Subsequent statutes embrace other cases than these here mentioned, and the punishment is now reduced to penal servitude. (4) The statutes relating to these offences were repcaled and consolidated by 7 and 8 Geo. IV, cc. 27 and 29, and the punishment greatly mitigated. (5) This subject is covered by statute 24 and 25 Vic. cc. 96, 97, 100. (6) Upon the subject of this paragraph, see statute 24 and 25 Vic. c. 97. he 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 denominated, 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 proportionately 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 like. And upon the same account also all affrays in a church or church-yard are esteemed very heinous [*146] 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 and 6 Edw. VI, c. 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 ecclesiæ; 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 excommunicated 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 branded with the letter F in his cheek. (7) 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 destroy a warren or the game therein; and part without doing it, or making any motion towards it. (f) (8) 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 (c) Ibid. 136. (d) Ibid. 137. (b) 1 Hawk. P. C. 134. (e) Ibid. 138. (f) 3 Inst. 176. (7) A clergyman may be guilty of brawling who addresses a public reproof to a parisha during his sermon, without any just cause or provocation, and with great warmth of passion, and a loud voice. Cox v. Goodday, 2 Hagg. Cons. 138. On this subject, see statute 23 and 24 Vic. c. 32. The statute 5 Edw. VI, c. 4, so far as relates to the punishment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike, as therein mentioned, was repealed by 9 Geo. IV, c. 31, s. 1. And so far as relates to persons not in holy orders, it was repealed by statute 23 and 24 Vic. c. 32, s. 5. (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, however, to arm himself and assemble his friends in defence of his close. 1 Russ. 362.] cause or 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 nuisance, in a violent and tumultuous manner. (9) The punishment 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. The same is the case in riots and routs by the common law; to *which the pillory (10) in very enormous cases has been sometimes superadded. () And by the statute 13 Hen. IV, c. 7, any [*147] 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 any 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 petition · ing; 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 assizes 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 incurring a penalty not exceeding 1007. and three months' imprisonment. (11) (i) 1 Hawk. P. C. 159. [*148] (h) 3 Inst. 176. (j) 1 Hal. P. C. 495. 1 Hawk. 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. (9) [To constitute a riot, the parties must act without any authority to give color 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 riots, &c. 2 Hawk. c. 65, s. 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, book 3, 5 n. 4), suffer private individuals to disturb the peace, by obtaining that redress by force which the law would regularly award them. 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. e. 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.] For a discussion of the general nature of this offence, see 2 Bish. Cr. L. § 954, et seq.; 1 Russ. on Crimes, 266. (10) Since abolished. And for the statutes for the punishment of riots, routs, &c., see 24 and 25 Vic. cc. 96, 97 and 100. (11) See Rex v. Lord George Gordon, Doug. 592. VOL. II.-49 385 |