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 jail 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 endeavor to maintain possession by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements for three years imme- [149] diately preceding."

9. Going armed with

weapons.

9. The offense 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 armor.o 10. Spreading false news, to make discord between the king in pre 10. Spread and nobility, or concerning any great man of the realm, is pun- news. ishable by common lawp with fine and imprisonment; which

(16) And a small fine may be imposed. Cald., 416. [CHITTY.]

(15) The offense is punished rather try (A., 2); 8 T. R., 361. If one peras a breach of the peace than an offense son of the company uses violence, all against the property of the individual, are alike guilty. Co. Litt., 257. See, see 3 Burr., 1701, 1706, 1731; 8 T. R., further, Burn, J., Forcible Entries.360; for no indictment lies for a civil in- [CHITTY.] jury, however obnoxious the trespass. Id. The offense is punishable at common law, 8 T. R., 360; and it is no excuse that the party enters to make a distress, or to enforce a lawful claim, Com. Dig., Forcible Entry (A., 2); 8 T. R., 361; 7 Moore, 574; nor does it alter the case that no one is within the house, or that possession was ultimately obtained by entreaty Com. Dig., Forcible En

(17) The judge at the Assizes may, in his discretion, refuse to award restitution, and the Court of Queen's Bench will not review his decision. 8 Ad. & E., 826; 2 M. & Rob., 141.

ing false

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 ancient Gauls. 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 15 Eliz., c. 15, the penalty for the first offense is a fine of ten pounds and 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 provoke or excite others to break it is an offense 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 offense.r18 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 Ann., c. 14, shall forfeit all his goods to the crown, and suffer two years' imprisonment.

19

13. Of a nature very similar to challenges are libels, libelli a "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 temerarios 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.

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

(18) The offenses of fighting duels, and could be shown that they were meant sending or provoking challenges, are fully to provoke a challenge. A challenge is considered by Mr. Just. Grose, in passing one of those offenses for which a crimsentence on Rice, convicted on a criminal information will be granted by the inal information for a misdemeanor of the Court of K. B.; but this will not be latter kind, 3 East, 581, where the opin- done where the party applying has himions of the earlier writings are collected. self first incited the proposal. 1 Burr., It is an offense, though the provocation 316.-[CHITTY.] The sending the chalto fight do not succeed, 6 East, 464; 2 lenge is the offense; and whether it Smith, 550; and it is a misdemeanor reach the person to whom it is sent or merely to endeavor to provoke another not, is immaterial. The defendant, thereto send a challenge. 6 East, 464. But fore, may be indicted in the county in mere words which, though they may which the letter containg it was put into produce a challenge, do not directly the post. 2 Campb., 506.* 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

(19) This enactment is repealed by the stat. 9 Geo. IV., c. 31.

* The sending a challenge to fight a duel, or being the bearer of such challenge, is, in New York, declared a crime, and is punishable with imprisonment in a state prison for a term which may be extended to seven years. The offender is also rendered ineligible to hold any office of trust or emolument under the constitution and laws of the state.-(2 R. S., 686, § 1, 4.)

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. 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 ;t20 and, therefore, the send1 Hawk., P. C., 193.

ing an abusive private 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. 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 u 2 Brownl., 151; 12 Rep., 35; Hob., ▾ Moor., 627; 5 Rep., 125; 11 Mod., 215; Poph., 139; 1 Hawk., P. C., 195. 99.

(21) But now, by the recent statute 6 & 7 Vict., c. 96, s. 4, the falsehood of the libel is made an essential element in the guilt of the defendant; it being enacted thereby, that if any person shall maliciously publish any defamatory libel, knowing the same to be false, he shall be liable, on conviction, to imprisonment for any term not exceeding two years, and to pay such fine as the court shall award. The 6th section of the same statute enacts, that on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as is thereinafter mentioned, the truth of the matters charged may be inquired into; but shall not amount to a defense, unless it was for the public benefit that they should be published; and that, to entitle the defendant to give evidence of their truth, it shall be necessary for him, in pleading, to allege the truth of the matters charg

ed, in the manner required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit; to which plea the prosecutor may reply generally, denying the whole; and if, after such plea, the defendant shall be convicted, the court may consider, in pronouncing sentence, whether his guilt is aggravated or mitigated by the plea, and the evidence given to prove or disprove it. And it is provided that the truth of the matters charged in the libel shall in no case be inquired into without such plea of justification. The defendant may also plead not guilty, and every defense which it is by law competent to him to make under that plea is expressly reserved to him.*

* Long before the statute 6 and 7 Vict., c. 96 (passed in 1843), the principle had been settled in this country that a defendant indicted for writing or publishing a libel might give in evidence, in his defense, the truth of the matters alleged to be libelous, provided it was shown that the publication was made with good motives and for justifiable ends; or, in other words, for the public benefit. As long since as 1805, a declaratory act was passed by the Legislature of New York, enacting, "that in every prosecution for writing or publishing any libel, it shall be lawful for the defendant, upon the trial of the cause, to give, in evidence in his defense, the truth of the matter contained in the publication charged as libelous; provided always, that such evidence shall not be a justification, unless on the trial it shall be further made satisfactorily to appear that the matter charged as libelous was published with good motives, and for justifiable ends.”—(Statutes of New York, 4th vol., Webster's and Skinner's edit., ch. 90, p. 232.) This act was passed in consequence of the doctrine held by the court in the famous case of The People v. Croswell, in which the distinguished ALEXANDER HAMILTON appeared as the advocate of the liberty of the press. Croswell was indicted for a libel on THOMAS JEFFERSON, then President of the United States, and was convicted by the verdict of the jury. He applied to the Supreme Court for a new trial, and the principal questions submitted by counsel and passed upon by the court were, 1. On the trial of an indictment for a libel, can the defendant give the truth in evidence in justification of the publication? and, 2. Have the jury the right to decide both the law and the fact? Justices Kent and Thompson held the affirmative upon both of these questions, and Chief-justice Lewis and Justice Livingston held the negative. The case was argued in February, 1804. At the succeeding May term the chief justice announced that the court were equally divided upon the questions submitted to them in the case, in consequence of the court, temporarily, being composed of but four judges, and that the public prosecutor was entitled to move for judgment. No motion, however, was made, because on the last day of the session of the legislature in April, 1804, a bill, entitled

action, we may remember, a libel must appear to be false, as well as scandalous ;w for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offense it may be against [151] 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 prosecution, 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 offense against the public is complete." The w See vol. iii., page 125.

(22) For a long time it was warmly lieved these, they were to find the decontested who were the proper judges fendant guilty; so that with the guilt or of the libelous character of the matter innocence of the party they had no concharged; the court or the jury. It was cern. 1 Barnard., 304, 5, 6; 9 Harg., repeatedly held, by Lords Raymond, St. Tr., 255; 3 T. R., 428, and in notes; Mansfield, and Kenyon, that the jury 5 Burr., 2661; 1 Erskine's Speeches. had no question submitted to them but This strange anomaly was so ably exthe fact of writing, printing, or publish- posed by Mr. Erskine, in the case of ing, and the truth of the innuendoes in- the Dean of St. Asaph, that, in conseserted in the proceedings; if they be- quence of his exertions, the 32 Geo. III., "An Act relative to Libels," had been passed by both houses, and transmitted to the Council of Revision, with whom it remained at the May term, and until the next session of the legislature in 1805, when it was sent back with objections, the principal of which was, that the bill did not contain a proviso similar to that incorporated in the act as finally passed. The legislature acquiesced, and an act containing the proviso was accordingly passed.-(The People v. Croswell, 3 Johns. Cas., 337, et seq.) The principle of the act was subsequently incorporated into the BILL OF RIGHTS, 1 R. S., 94, § 21, and into the amended CONSTITUTION of 1821, art. 7, § 8, and also in the Constitution of 1846.

Similar provisions respecting giving the truth in evidence in cases of libels and the motives of publication, are contained in the Constitutions of Mississippi and Michigan. The language of the Constitution of Pennsylvania is different; it authorizes the truth to be given in evidence, and empowers the jury to determine the law and the fact in prosecutions for publications investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information. The provision on this subject, in the Constitutions of Kentucky, Illinois, Delaware, Ohio, Indiana, and Arkansas, is similar to the provision in the Constitution of Pennsylvania; and so is the provision in the Constitution of Maine, except that it embraces publications respecting candidates as well as officers already in existence. The Constitution of Connecticut provides for giving the truth in evidence, and authorizes the jury to determine both the law and the fact. In the constitutions of several of the states there is only a general provision in favor of the liberty of the press; and in some the subject is not noticed. The Constitution of South Carolina is silent upon the subject; but the Supreme Court of that state has declared the law to be that, in prosecutions for libels, the intention with which the publication is made, as well as the fact of publication and the truth of the innuendoes, are involved in the general issue, and that the whole case, law as well as fact, is resolved by a general verdict, State v. Allen, 1 M'Cord's R., 525; and in Massachusetts, the Supreme Court of that state, in 1808, held, in the case of The Commonwealth v. Clapp, 4 Mass. R., 168, which was an indictme for a libel, that the defendant may not justify himself for publishing a libel merely by proving the truth of the publication, but that he may prove that the publication was for a justifiable purpose, and not malicious, or with the intent to defame; and when the purpose is justifiable (the court say), there may be cases when the truth may be given in evidence.