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fences in this place not on account of the damage thereby done to private pro perty, 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 forinerly high treason, by the statute 8 Hen. V. 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 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 destroy any turnpike-gate or fence, toll-house or *weighing-engine thereunto be*145] longing, 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 The remaining ever, is repealed, (except as to sending letters threatening to kill or murder, or to burn or destroy property; and as to accessories to such offences, and as to rescues,) by 7 & 8 Geo. IV. c. 27. All the statutes relating to these offences are repealed and consolidated, by 7 & 8 Geo. IV. c. 27 and c. 29; and, by 7 & 8 Geo. IV. c. 29, s. 26, stealing or attempt ing to kill or wound any deer kept in any enclosed ground is declared felony, and the guilty party is liable to be punished as in the case of simple larceny; and committing the same offence in unenclosed grounds is punishable summarily by fine not exceeding 50%, and repeating such offence is deemed felony and punishable as a simple larceny. -CHITTY.

5 The statute now in force upon this subject is the 7 & 8 Geo. IV. c. 29, by sect. 8 of which, persons sending letters containing menacing demands, or threatening to accuse a party of any crime punishable with death, transportation, or pillory, or of any other infamous crime, to extort money, shall be guilty of felony, and, on conviction thereof, be liable, at the discretion of the court, to transportation for life or not less than seven years, or imprisonment for any term not exceeding four years, and, if males, to one, two, or three public whippings, in addition to such imprisonment.. Section 9 defines what shall be deemed an infamous crime.

Sending a letter threatening to accuse the prosecutor of having made overtures to the prisoner to commit sodomy with him does not threaten to charge such an infamous crime as to be within the act. Rex vs. Hickman, R. & M. C. C. 34. But see Rex vs. Wagstaffe, R. & R. C. C. 398. Rex vs. Paddle, id. 484.-CHITTY.

6 By 7 and 8 Geo. IV. c. 30, amending and consolidating all former statutes on these subjects, breaking or cutting down any sea bank or wall, or the bank or wall of any river, canal, or marsh, or destroying any lock, sluice, floodgate, or other work on any navigable river or canal, is made felony, punishable with transportation for life or not less than seven years, or with imprisonment for any term not exceeding four years, and, to male offenders, with one, two, or three public whippings. And cutting off or removing the piles for securing any sea bank or wall, or the bank or wall of any river, canal, or marsh, or doing any injury to obstruct the navigation thereof, is made felony, subject to transportation for seven years, or to imprisonment for any term not exceeding two years, and, to males, one, two, or three public whippings. S. 12.

And, by sect. 14, throwing down or otherwise destroying any turnpike-gate, or other erection, or fence connected with or belonging to the same, is made punishable as a misdemeanour.-CHITTY.

By stat. 8 & 9 Vict. c. 44, the malicious destruction of any thing kept for the purposes of art, science, or literature in any public repository, or of ornaments in places of religious worship, or of statues or monuments exposed to public view, is a misdemeanour, and punishable with fine and imprisonment. STEWART.

offences against the public peace are merely misdemeanours, and no felonies;


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 com. batants, 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 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 [*146 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 churchyard 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. c. 4, that if any person shall, by words only, quarrel, chide, or brawl in a church or churchyard, 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 churchyard 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." 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) A rout is where three or more meet to do an unlawful act upon

() 1 Hawk. P. C. 134.

(c) Ibid. 136.

(d) Ibid. 137.

Ibid. 138.
3 Inst. 176.

By 9 Geo. IV. c. 31, s. 1, "so much of 5 & 6 Edw. VI. c. 4, entitled an Act against quarrelling and fighting in churches and churchyards, as relates to the punishment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike, as therein mentioned," is repealed.

It seems that brawling was not made an offence by 5 & 6 Edw. VI. c. 4, but was previously cognizable by the spiritual courts. Ex parte Williams, 6 D. & R. 373. 4 B. & C. 313.

With respect to the malicious or contemptuous disturbance of a congregation, or molestation of a minister, during the celebration of divine service, see the statutes 1 M. c. 3 and 1 W. and M. c. 18, ante, 54.-CHITTY.

An assembly of a man's friends for the defence of his person against those who threatened 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 disturb ance 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 per

a common quarrel, as forcibly breaking down fences upon a right claimed of cominon 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 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. *The punishment of unlawful assemblies, if

*147] 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 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. (i)" 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 antient 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 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 assizes or quarter sessions, and in London by the lord mayor, aldermen, *and common council;(k)

*148] and that no petition shall be delivered by a company of more than ten

(9) Bro. Abr. tit. Riot, 4, 5.

(*) 3 Inst. 176.

1 Hawk. P. C. 159.

1 Hal. P. C. 495. Ibid. 161.

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

mitted 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.-CHITTY. 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, 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, 3 book, 5,) 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. 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. CHITTY.

10 By the 3 Geo. IV. c. 144, hard labour may be imposed.-CHITTY. "But now the pillory is abolished, by 56 Geo. III. c. 138.—CHITTY.

persons, on pain in either case of incurring a penalty not exceeding 1001. and three months' imprisonment.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. 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 statutes of 15 Ric. II. c. 2, 8 Hen. VI. c. 9, 31 Eliz. c. 11, 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 [*149 lands and tenements for three years immediately preceding.(n)

9. The offence of riding or going armed with dangerous or unusual 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)

10. Spreading false news, to make discord between the king and nobility, 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 antient 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

() See book iii. p. 174, &c.

()1 Hawk. P. Č. 141.

(*) 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.

(e) Pott. Antiq. b. i. c. 26.

(P) 2 Inst. 226. 3 Inst. 198.

(9)" Habent legibus sanctum, si quis quid de republica a finitimis rumore aut fama acceperit, uti ad magistratum deferat neve cum alio communicet: quod sæpe homines teme rarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." Cæs. de Bell. Gall. lib. 6, cap. 19.

12 In the trial of lord George Gordon, it was contended that the article of the Bill of Rights which declares that it is the right of the subject to petition the king, and that all commitments and prosecutions for such petitioning are illegal, had virtually repealed this statute. This, however, was denied by lord Mansfield in the name of the court. Doug. 592.-COLERIDGE.

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 to pro*150] voke or excite others to break it is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence.(r) If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Anne, c. 14, shall forfeit all his goods to the crown and suffer two years' imprisonment.

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) The direct tendency 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 libel to any one person is a publication in the eye of the law;(t) and therefore the sending an abusive letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace.(u) For the same reason, it is immaterial, with respect to the essence of a libel, whether the matter of it be true or false, (v) since the provocation, and not the falsity, is the thing to be punished criminally; though, doubtless, the falsehood of it may aggravate its guilt and enhance its punishment." In a civil action, we may remember, a libel must appear to be false as well as scandalous;(w) for, if *151] the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace; and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecu tion, the tendency which all libels have to create animosities and to disturb the public peace is the whole that the law considers. And, therefore, in such prosecutions the only points to be inquired into are, first, the making or publishing of the book or writing, and secondly, whether the matter be criminal; and if both these points are against the defendant, the offence against the public is complete.15 The punishment of such libellers, for either making, repeating,

() 1 Hawk. P. C. 135, 138.

Ibid. 193.

() Moor. 813.

(*) 2 Brown, 115. 12 Rep. 35. Hob. 215. Poph. 139 1 Hawk. P. C. 195.

) Moor. 627 5 Rep. 125. 11 Mod. 99. (w) See book iii. page 125.

13 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 misdemeanour 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 misdemeanour 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 shown 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 King's Bench, though this will not be done where the party applying has himself first incited the proposal. 1 Burr. 316.-CHITTY.

14 The words of lord Mansfield, "the greater truth, the greater libel," which his enemies wished with much eagerness to convert to the prejudice of that noble peer's reputation as a judge, were founded in principle and supported by very ancient authority. Lord Coke has said, "that the greater appearance there is of truth in any malicious invective, so much the more provoking it is." 5 Co. 125.

Where truth is a greater provocation than falsehood, and therefore has a greater tendency to produce a breach of the public peace, then it is certainly true that the greater truth, the greater libel. Asperis facetis inlusus, quæ ubi multum ex vero traxere, acrem sui memoriam relinquunt. Tac. Ann. 15, c. 68.-CHRISTIAN.

15 But a modification of this rule has been recently admitted by the legislature; and i'

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