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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, if they contemn his orders and continue together for one hour afterward, such contempt shall be felony without benefit of clergy. And, further, if the reading of the proclamation be by force opposed, or the reader be in any manner willfully 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 endeavor to disperse them; being copied from the act of Queen Mary. And by a subsequent clause of the new act, if any persons so riotously assembled begin, even before proclamation, to pull down any church, chapel, meeting-house, dwellinghouse, or out-house, they shall be felons without benefit of clergy.'

(1) The punishment of death is taken Vict., c. 56, s. 2, and 6 & 7 Vict., c. 10, away, by the 1 Vict., c. 91, s. 1, from the punishment thereof is transportation these offenses, and they are subjected for life, or for any term not less than to transportation for life, or for any term seven years, or imprisonment for any not less than seven years, or imprison- term not exceeding three years. ment for any term not exceeding three years.

(2) This offense is now provided against by the 7 & 8 Geo. IV., c. 30, s. 8, which enacts, that if any persons riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish or pull down, or destroy, or begin to demolish, &c., any church or chapel, or dissenting chapel duly registered, or any house, stable, coach-house, out-house, ware-house, office, shop, mill, malt-house, hop-oast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or any machinery, whether fixed or movable, prepared for or employed in any manufacture, or any steam-engine, or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon way, or trunk for conveying materials from any mine, every such offender shall be guilty of felony; and by the 4 & 5

Upon an indictment for beginning to demolish, &c., any building, it must appear, in order to bring the parties within the statute, that they began to demolish some part of the freehold; for instance, the demolition of movable shop shutters is not sufficient. 9 C. & P., 437. And the jury must be satisfied that the ultimate object of the rioters was to demolish the building, and that, if they had been allowed to carry their intention into effect, they would have proceeded to do so. 4 C. & P., 237; 5 C. & P., 510; 9 C. & P., 437; 1 C. & Mar., 299. A demolition by fire is within the statute. 9 C. & P., 437; 1 C. & Mar., 661. And it is a sufficient demolishing of a house, if it be so far destroyed as to be no longer a dwelling; the fact, for instance, that the rioters left a chimney standing would make no difference. 1 C. & Mar., 502.

As to the remedies of the injured parties in these cases against the hundred, see now the stat. 7 & 8 Geo. IV., c. 31; ante, vol. iii., p. 161.

There is no such statute in New York; on the contrary, there is a constitutional provision that the right of the people peaceably to assemble and to petition for a redress of grievances shall not be abridged.—(Const. U. S., Amendments, art. 1, and Const. of New York, 1840.)

in the night.

2. By statute 1 Hen. VII., c. 7, unlawful hunting in any legal 2. Hunting 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 usually kept, or in any warren for hares or coneys, or in any high road, open heath, [144] 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.' mention these offenses 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.

I

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 offense was formerly high treason by the statute 8 Hen. V., c. 6.**

send or deliver any letter or writing, accusing, or threatening to accuse, any person of any crime punishable by law with death or transportation, or of any assault with intent to commit any rape, or of any infamous crime, as thereinafter defined, with a view or intent to extort or gain from such person any chattel, money, or valuable security, the offender shall be guilty of felony, and liable to transportation for life, or for a period not less than seven years, or imprisonment (with whipping) not exceeding four years. And the 4 Geo. IV., c. 54, s. 3, declares, that if any person shall knowingly and willfully send or deliver (4) By the 7 & 8 Geo. IV., c. 27, s. 1, any letter or writing, with or without all the previous statutes relating to this any name or signature subscribed thereoffense (except so much of the stat. 4 to, or with a fictitious name or signature, Geo. IV., c. 54, as is hereinafter set threatening to kill or murder any of his forth) were repealed; and by the 7 & 8 majesty's subjects, or to burn or destroy Geo. IV., c. 29, s. 8, it is enacted that his or their houses, out-houses, barns, if any person shall knowingly send or stacks of corn or grain, hay or straw; deliver any letter or writing, demanding or shall procure, counsel, aid, or abet of any person, with menaces, and with- the commission of the said offenses, or out any reasonable or probable cause, of any of them, such offender will be any chattel, money, or valuable securi- guilty of felony, and may be transportty; or if any person shall accuse or ed for life, or for not less than seven threaten to accuse, or shall knowingly years, or be imprisoned, with or with

* See ante, p. 137, n. t.

(3) This statute was repealed by the 7 & 8 Geo. IV., c. 27; and by the 7 & 8 Geo. IV., c. 29, s. 26, the unlawful hunting, &c., of deer kept in the inclosed part of any forest, chase, &c., is felony, punishable as simple larceny; and in the uninclosed part is subject to a penalty not exceeding £50 for the first offense, and for a subsequent offense is felony, punishable as larceny. See s. 30 and 34 of the same statute, as to the unlawful taking and killing of hares, coneys, and fish; and post, p. 235; and as to night-poaching, the 9 Geo. IV., c. 69; post, p. 198, note.

3. Threaten. ing letters.

ing, &c.,

4. Destroy. 4. To pull down or destroy any lock, sluice, or flood-gate Hood-gates, erected by authority of Parliament on a navigable river, is by &c., on navi- 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 offense of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of

gable rivers.

out hard labor, for not exceeding seven years.

And in order to avoid all doubts with respect to what is an infamous crime within the 7 & 8 Geo. IV., c. 29, s. 8, the 9th section of the same statute enacts, that the abominable crime of buggery, committed either with mankind or with beast, and every assault with intent to commit the said abominable crime, and every solicitation, persuasion, promise, threat, or menace, offered or made to any person, whereby to move or induce such person to commit or to permit the said abominable crime, shall be deemed to be an infamous crime within the meaning of that act.

Many questions, which arose upon the former statutes on this subject, are avoided by the more comprehensive words of the acts now in force, and it has become unnecessary to notice them. With respect to what constitutes a sending of the letter, it has been held that dropping a letter in a man's way, in order that he may pick it up, is a sending it to him; even though the party saw the prisoner drop the letter, if the prisoner did not think the party knew him, and intended he should not. Russ. & Ry., C. C., 398; 2 East, P. C., 123. So proof of the defendant's delivering the letter sealed up, and addressed to the prosecutor, to a person to carry to the post-office, is a sufficient sending, and is evidence of his knowledge of the contents. 1 Leach, 142; 2 East, P. C., 1120. A fortiori, the receipt of it through the post, in the defendant's handwriting, is a sufficient sending by him. 2 East, P. C., 1115, 1116. The letter must be sent to the person threatened, and it must be so stated in the indictment, 1 Mood., C. C., 90; but sending the letter to A. in order that he may deliver it to B., is a sending to B., if the letter be delivered by A. to B. Russ. & Ry., C. C., 484. With respect to the nature of the demand or threat, to bring the case within the 7 & 8 Geo. IV., c. 29, s. 8, a letter threatening to impute the crime of murder to a man, unless he disposes of his property in a certain way, is a sufficient demand, 1 Leach, 749; and a letter accusing the prosecutor of a murder of one of the defendant's friends, and threatening to revenge his death, is suf

ficient evidence to be left to the jury to determine whether a threat to murder was implied. 1 Leach, 142. But a letter threatening to set fire to the mill of the party to whom it is addressed, and to do him all possible mischief in his farms, when he is not the proprietor of any mill, was held not to be within the 27 Geo. II., c. 15, for the general denunciation of mischief would not suffice. 2 East, P. C., 1115. So the sending a letter to A., threatening to burn a house of which he was the owner, but which was let by him to and occupied by a tenant, was held not to be an offense within the 4 Geo. IV., c. 54. 2 M. & Rob., 296. Where it is doubtful on the face of the letter or writing itself what charge is intended to be imputed to the prosecutor, parol evidence, of the defendant's declarations, for instance, is admissible to explain it. 1 Mood., C. C., 134. And the indictment need not describe the accusation in strict technical language, or specify the infamous crime imputed, which might have been intentionally left in doubt. Ibid. The let ter or writing must be accurately set out in the indictment, and the least variance will be fatal.

As to what is included under the term "valuable security" in the 7 & 8 Geo. IV., c. 29, s. 8, see the 5th section of the same statute; and post, p. 234.

A new offense, of a like nature with the above, has been created by the stat. 6 & 7 Vict., c. 96, s. 3; which enacts, that if any person shall publish, or threaten to publish, a libel upon any other person, or shall, directly or indirectly, threaten to print or publish, or propose to abstain from printing or publishing, or of fer to prevent the printing or publishing of any matter or thing touching any other person, with intent to extort any money or security, or any valuable thing, from such or any other person, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, the offender, on conviction, shall be liable to imprisonment, with or without hard labor, for any term not exceeding three years. It is expressly provided that this enactment shall not affect the former law relating to the sending or delivery of threatening letters or writings.

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 the statute 7 Geo. III., c. 40 (which repeals all former [145] acts relating to turnpikes), maliciously to pull down or otherwise destroy any turnpike-gate or fence, toll-house or weighingengine 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 offenses against the public peace are merely misdemeanors, and no felonies; as,

peace

5. Affrays (from affraier, to terrify) are the fighting of two Breaches of or more persons in some public place, to the terror of his maj- the Paci esty's subjects; for, if the fighting be in private, it is no affray, ous. but an assault.b Affrays may be suppressed by any private 5. Affrays. person present, who is justifiable in endeavoring to part the

b 1 Hawk., P. C., 134.

c Ibid., 136.

(5) All these statutes are consolidated by the 7 & Geo. IV., c. 30, the 12th section of which enacts, that if any person shall unlawfully and maliciously break down or cut down any sea-bank or seawall, or the bank or wall of any river, canal, or marsh, whereby any lands shall be overflowed or damaged, or shall be in danger of being so; or shall unlawfully and maliciously throw down, level, or otherwise destroy any lock, sluice, flood-gate, or other work on any navigable river or canal, the offender shall be guilty of felony, and liable to transportation for life, or for any term not less than seven years, or imprisonment (with whipping, if the court think fit) not exceeding four years. And by the same section, the unlawful and malicious cutting off, drawing up, or removing, of any piles, chalk, or other materials fixed in the ground, and used for securing any sea-bank, &c., &c., or opening of any flood-gate, or the doing of any other injury or mischief to any navigable river or canal, with intent, and so as thereby to obstruct or prevent the carrying on, completing, or maintaining, the naviga

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tion thereof, is also declared to be fel-
ony, punishable with transportation for
seven years, or imprisonment, with whip-
ping, not exceeding two years.

The 19 Geo. II., c. 22, and 54 Geo.
III., c. 159, provide for the protection
of havens, ports, harbors, moorings, &c.*

(6) This act is now repealed, and the stat. 7 & 8 Geo. IV., c. 30, s. 14, makes the offense a misdemeanor only, and punishable accordingly. The statute extends to the throwing down, leveling, or otherwise destroying, "in whole or in part, any turnpike-gate, or any wall, chain, rail, post, bar, or other fence belonging thereto, or any house, building, or weighing-engine" erected for the collection of the toll.t

(7) But see now the 7 & 8 Geo. IV., c. 30, s. 13, whereby the destroying, &c., of public bridges is declared to be a felony, punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years. See post, p. 243.

The punishment for willfully breaking, throwing down, or destroying any lock, bank, waste-weir, dam, aqueduct, or culvert on any canal, is imprisonment in the county jail or a state prison, at the discretion of the court before whom the trial is had; the imprisonment not to exceed three years.-(1 R. S., 248, § 180.)

The willful or malicious destruction of a turnpike-gate, or of a public or toll bridge, is a misdemeanor, punishable by fine and imprisonment.-(2 R. S., 695, § 30, 33.)

combatants, whatever consequence may ensue. 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. 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 re[146] strain and regulate men's behavior, 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 offenses, as being indignities to Him to whose service those places are consecrated. Therefore, mere quarrelsome words, which are neither an affray nor an offense in any other place, are penal here. For it is enacted by statute 5 & 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 Fin 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 inclosures, to destroy a warren or the game therein; and part without doing it, or making any motion toward it. A rout is where three or more meet to do

d 1 Hawk., P. C., 137.

• Ibid., 138.

f 3 Inst., 176.

(8) By the 9 Geo. IV., c. 31, so much which relates to smiting, &c., is still in of this statute as relates to "the punish- force. ment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike as therein mentioned;" and semble, the second section,

6. Riots and unlawful assemblies.

(9) An assembly of a man's friends for the defense of his person against those who threaten to beat him if he go

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