The punishment for the person embracing is by fine and imprisonment; (66) 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. (67)

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) (68)

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. (f) (69) Also, the omitting to apprehend persons offering *141] stolen iron, lead, and other metals to sale is a misdemeanor, and punishable by a stated fine, or imprisonment, 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 color 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. (70)

(8) See book iii. pp. 402, 403.

(t) 1 Hawk. P. C. 168.

enforcing the evidence by counsel at the trial, whether the jurors give a verdict or not, and whether the verdict be true or false. (3 Bac. Abr. 785. I Hawk. P. C. ch. 85. Co. Litt. 369). And it is an offence at common-law as well as by statute, and punishable by fine and imprisonment. Gibbs v. Dewey, 5 Cowen (N Y.) 503, 504 (1826).

(66) "Offences of this kind subject the offender to be indicted and punished by fine and imprisonment in the same manner as all other kinds of unlawful maintenance do by the common-law. They are also restrained by statutes, etc." Russell on Crimes, 1, *265. (67) 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.— CHITTY.

(68) The writ of attaint against jurors is now utterly abolished, by the 6 Geo. IV. c. 50 6o; and, by 61, they are rendered punishable for misconduct by another mode.CHITTY.

(69) Hill v. State, 4 Sneed (Tenn.) 443, 445 (1857). This case affirmed a convicion of the mayor and aldermen of an incorporated town for failure to keep the public streets of the town in good repair. See Russell on Crimes, 1, *203.

(70) 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. & A. 432. That case seems to lay down the general rule upon this subject clearly and definitively.-CHITTY.

"A judge is not indictable for an error in judgment; but this rule extends only to judges in courts of record and not to ministerial officers." Russell on Crimes, I, *200, note. A decision by a justice, contrary to the law and evidence, and rendered against the defendant for spite, would constitute an offence against public justice, for which he would be liable to indictment and removal from office. Gove v. Blethen, 21 Minn. 80, 84 (1874). "Discharging an offender without requiring sufficient sureties, when it is done with intent to pervert the course of law and justice, is clearly an indictable offence." People v. Coon, 15 Wend. (N. Y.) *277, *278 (1836).

"Whenever magistrates act partially or oppressively, from a malicious or corrupt motive, they may be punished criminally. Discharging an offender, without requiring sufficient sureties, when it is done with intent to pervert the course of law and justice, is clearly an indictable offence." Archbold, Cr. Pl. & Pr. 1, 1365.

22. Lastly, extortion (71) is an abuse of public justice, which consists in any officer's unlawfully taking, by color 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. (72)

CHAPTER XI.

OF OFFENCES AGAINST THE PUBLIC PEACE.

*WE are next to consider offences against the public peace; (1) the [*142 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 (2) 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 (u) 1 Hawk. P. C. 170. (a) Book i. pp. 118, 268, 350.

(71) A promise to pay a person for doing any act which he is already bound to do is void, on the ground that the contract is extortionate. Story on Contracts, 5 ed. (Bigelow), vol. 1, 703, p. 683. "It [extortion] is the corrupt demanding or receiving by a person in office, of a fee for services which should be rendered gratuitously; or where compensation is permissible, of a larger fee than the law justifies, or a fee not yet due." Bishop, Cr. L. 2, & 390, p. 225. An indictment charging the defendant, a jailer, with the offence of extortion, by wilfully and corruptly compelling a prisoner to pay him money to which he was not entitled-Held to be good, and that the facts set forth were sufficient to constitute the offence charged. Commonwealth v. Mitchell, 3 Bush. (Ky.) 25, 26 (1867). State v. Oden, 10 Ind. App. 136, 137 (1894). A mere threat to sue does not constitute extortion. State v. White, 10 Richardson (S. C.) 442, 447 (1857). 'Extortion in a large sense signifies any oppression under color of right." Archbold, Crim. Pl. & Pr. 2, 1368, 1369. Id. Russell on Crimes, 1, *208. See Malone's Crim. Briefs, p. 360. Bishop, Cr. L. 573, p. 354. Also, State v. Pritchard, 107 N. C. 921, 926 (1890).

(72) By the statute of 3 Edw. I. c. 16, in affirmance of the ancient law, it is enacted that no sheriff, nor other king's 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 doeth 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 135. 4d. from every defendant who pleads to a joint information, or above 2s. 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. 3 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. 368, 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 him for the more diligent or expeditious performance of his duty. 2 Inst. 210, 211. But a promise to pay him money for an 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. I Bla. Rep. 204. There are no accessaries in extortion. 1 Stra. 75.-CHITTY.

(1) Offences against the public peace include all acts affecting the public tranquillity, such as assaults and batteries, riots, routs and unlawful assemblies, forcible entry and detainer, etc." City of Corvallis v. Carlile, 10 Ore. 139, 142 (1882).

(2) It does not seem necessary that twelve persons should have been guilty to constitute

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 name 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 endeavoring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established *143] *which was likely to produce great discontents; but at first it was made only for a year, and was afterwards continued for that queen's life. And, by statute i 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, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy.(3) And further, 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 hindrance, 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, dwelling-house, or out-houses, they shall be felons without benefit of clergy.(4)

2. By statute 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 enclosed forest or place where deer are usually *144] kept, or in any warren for hares or coneys, 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

a riotous assembly within the acts. See Doug. I ed. 673; 2 ed. 699. 5 T. R. 14. 2 Saund. 377, b. n. 12.—CHITTY. "There are English statutes, ancient as well as comparatively modern, making the riotous assembling of twelve or more persons, under circumstances and for purposes specified, a heavier offence (than for riot), but we have no reported attempts to give them a common-law force in this country." Bishop, Cr. L. 1, 534, p. 329. (3) But, by stat. 1 Vict. c. 91, ss. 1, 2, it is punishable with transportation for life, or for not less than fifteen years, or imprisonment for three; and now, by stat. 16 & 17 Vict. c. 99, penal servitude may be substituted.-STEWART.

(4) By stat. 4 & 5 Vict. c. 56, s. 2, the punishment was changed to transportation for seven years or imprisonment for three, and is now changed to penal servitude.-Stewart. See 49 & 50 Vict. c. 38.

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.(5) 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.(6) This offence was formerly 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, tollhouse or *weighing-engine thereunto belonging, erected by authority [*145 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. (7) 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, (8) for if

(5) The 9 Geo. I. c. 22, and 27 Geo. II. c. 15, depriving parties committing these offences of benefit of clergy, were repealed, by 4 Geo. IV. c. 54, s. 3, which subjected the party to transportation or imprisonment at the discretion of the court. The latter act, however, is repealed, (except as to sending letters threatening to kill or murder, or to burn or destroy property; and as to accessaries 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 attempting 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.

(6) "Later English statutes have revised and superseded the foregoing; as, 7 & 8 Geo. IV. c. 29, 8. 7 Will. IV. and 1 Vict. c. 87, % 7. 10 & 11 Vict. c. 66, & I. 24 & 25 Vict. c. 96, 22 45, 47 and c. 97. With us more of the English enactments appear to be within the rules making them common law, or to have been accepted as such. But in a part of our states, if not all, there are statutes modelled more or less after the English ones." Bishop, Cr. L. 2, ₹ 1200, p. 691.

(7) See stat. 24 & 25 Vict. c. 97, concerning malicious injuries to property.

(8) Russell on Crimes, 1, *145. Wilkes v. Jackson, 2 Hen. & M. (Va.) 355. 359. 360 (1808). Archbold, Crim. Pl. & Pr. 2, 1709. To constitute an affray there must be (1) a fighting: (2) the fighting must be between two or more persons; (3) it must be in some public place. An indictment charging "that A. B. with force and arms being arrayed in a warlike manner in a certain public street and highway, unlawfully and to the great terror of the people, an affray did make," etc., does not charge an indictable offence. Simpson v. The State, 5 Yerger (Tenn.) 356, 357 (1833). An indictment for an affray must charge the fighting to have been in a public place. An allegation that it took place in the town of C. is not

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 endeavoring 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 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) *146] *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 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 churchyard are esteemed very heinous offences, as being indignities to Him to whose service those places are consecrated. (9) 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, (10) 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;(11) 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. (12). Two persons may be guilty of an affray: but,

6. Riots, routs, and unlawful assemblies must have three persons at least to constitute them.(13) An unlawful assembly is when three or more do (d) Ibid. 137. (e) Ibid. 138.

(b) 1 Hawk. P. C. 134. (c) Ibid. 136.

sufficient. It might have been in the town of C. and yet out of the sight and hearing of all but the parties concerned. State v. Heflin, 8 Humphreys (Tenn.) 84, 85 (1845). "An affray differs from a riot in this; that two persons may be guilty of it, whereas three persons at least are necessary to constitute a riot, in its legal sense." Barb. Cr. L. 1, *227, p. 410. "Of a nature similar to riot and its two related offences, is affray; being the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. It is indictable at the common law." Bishop, Cr. L. I, 535, p. 329. Malone Crim. Briefs, p. 179.

To support a prosecution for an affray the prosecutor must prove, in addition to the requisites given in the text, that in the affray or fighting there must be a stroke given or offered, or weapon drawn, otherwise it is not an affray. Archbold's Crim. Pl. &

Pr. vol. 2, 1712.

(9) See stat. 18 & 19 Vict. c. 86.

(10) [From entering the church.] (11) [By the fact itself.]

(12) Ex parte Wurtele, 1 Lower Canada Reports, 414, 433 (1851).

(13) By stat. 23 & 24 Vict. c. 32, if any person shall be guilty of riotous, violent, or indecent behavior in any cathedral, church, etc., whether during the celebration of divine service or at any other time, or in any church yard or burial ground, who shall molest, etc. any duly authorized preacher or person in holy orders, ministering or celebrating any sacrament or divine service, etc. shall upon conviction be imprisoned for a time not longer than two months.