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 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 VI, c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by the statute 1 Mar.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 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 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 assistants, if they killed any of the mob in [*143] endeavouring 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 that 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, stat. 2, 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. (1) 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

(a) Book I, pp. 118, 268, 350.

and corrupt. State v. Gardner, 2 Mo., 23; People v. Coon, 15 Wend., 277; United States v. Waitz, 3 Sawy., 473.

In the United States corrupt misconduct by judges of courts of record is punishable by impeachment. Inferior judicial officers are punishable by indictment, and possibly in some states by impeachment.

(1) 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.

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. (2)

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, [*144] 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 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. (3) 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, outhouses, barns, or ricks, is made felony without benefit of clergy. (4) 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 floodgates or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years. And by the statute 7 Geo. III [*145] 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 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. (5) 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, (6) to the terror of his majesty's subjects; for, if the

(2) Subsequent statutes embrace other cases than these here mentioned, and the punishment is now reduced to penal servitude.

(3) The statutes relating to these offenses were repealed and consolidated by 7 and 8 Geo. IV, cc. 27 and 29, and the punishments greatly mitigated.

(4) This subject is covered by statute 24 and 25. Vic., cc. 96. 97, 100.

(5) Upon the subject of this paragraph, see statute 24 and 25 Vic., c. 97.

(6) To be public, the place must be one where the public may go at will without invitation. Thus, a field surrounded by forest, a mile from any highway or public place, does not lose its character as private by the casual presence of three persons. Taylor v. The State, 22 Ala., 15. But, where a fight took place in an enclosed lot, ninety feet from the street and visible from it, although no person in the street was shown to have seen the encounter, the spot was held a public place and the fight an affray. Carwile v. The State, 35 Ala., 392. And it has been held that a legal highway, if sufficiently secluded, is not neces

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 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 cooly 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 offences, as being indignities to him to whose service those [*146] 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 ecclesia; 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

(b) 1 Hawk. P. C. 184.

(c) Ibid. 136.

(d) Ibid. 137.

(e) lbid. 138.

(ƒ) 8 Inst. 176.

sarily a public place. State v. Weekly, 29 Ind., 206. As illustrating what is held to be a public place, see, where gaming has been the offense charged, Windham v. State, 26 Ala., 69; McCauley v. State, 26 Ala., 135; Burdine v. State, 25 Ala., 60; Roquemore v. State, 19 Ala., 528; Clarke v. State, 12 Ala., 492; Lowrie v. State, 43 Tex., 602; Smith v. State, 52 Ala., 384. And where indecent exposure has been the charge: Reg. v. Orchard, 3 Cox C. C., 248, and Reg. v. Holmes, 3 C. & K., 360, where an omnibus was held to be a public place.

(7) A clergyman may be guilty of brawling who addresses a public reproof to a parishioner 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, § 5.

(8) "Also an assembly of a man's friends for the defense of his person against those who threaten to beat him, if he go to such a market, etc., 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; yet an assembly of a man's friends in his own house, for the defense of

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 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 [*147] cases has been sometimes superadded. (1) And by the statute 13 Hen.

(g) Bro. Abr. t. Riot, 4, 5.

(h) 8 Inst 176.

(i) 1 Hawk. P. C. 159.

the possession thereof, against those who threaten to make an unlawful entry thereinto, or for the defense of his person against those who threaten to beat him therein, is indulged by law; for a man's house is looked upon as his castle." 1 Hawk. P. C., ch. 65, § 10.

"What is thus said by Hawkins about an assemblage to defend a man's castle is clearly correct. The other branch of the doctrine of this eminent author doubtless needs some qualification. For plainly there may be circumstances in which u man may receive the assistance of his friends in the defense merely of his person, without exposing them to indictment for unlawful assembly." 2 Bish. C. L., 5th ed., § 1259.

(9) At common law, two could not be guilty of riot. R. v. Heaps, 2 Salk., 374, and State v. Turpin, 4 Blackf., 72; where three were indicted and but one found guilty, and it was held no sentence could be pronounced. Where several were indicted and two found guilty, no judgment should be given; otherwise, if the indictment had been against the two and divers others, etc., and upon that indictment verdict as above. Rex v. Sudbury, 12 Mod., 262. Where six were indicted and two died before trial, two acquitted, and two were found guilty, the two latter could be sentenced. Rex v. Scott, 3 Burr., 1262. Where three were indicted and one was tried separately and found guilty, the others not having been tried, judgment was pronounced, though at a subsequent trial one of the others was acquitted. State v. Allison, 3 Yerg., 428. To convict of rioting, it is enough if a person is present giving aid and countenance to the disturbance, without being himself active in the riot. Williams v. State, 9 Mo., 270; State v. Straw, 33 Me., 554. Where three combine to do an unlawful act, all are guilty, though only one threatens violence. Bell v. Mallory, 61 Ill., 167. One who, by a speech, stirs up a riot, but is absent from the actual disturbance, is guilty of rioting, if the speech and the disturbance are nseparably connected. R. v. Sharpe, 3 Cox C. C., 288. Acquiescence must be explained, to prevent a bystander at a riot from being held guilty. Pennsylvania v. Craig, Addison, 190; but it is held not to be law that all present and not engaged in suppressing a riot, are guilty. State v. McBride, 19 Mo., 239.

To constitute a riot, the act must be such as to inspire terror. 1 Hawk. P. C., ch. 65, § 5; R. v. Soley, 2 Salk., 594; R. v. Hughes, 4 C. & P., 373. If the tendency of an unlawful act of several persons is to inspire terror, and they execute their purpose, it is enough, although the act does not in fact frighten a large number of people. State v. Alexander, 7 Rich., 5. So where a number of armed men in a violent way come to search a house, they may be guilty of riot though the owner of the house treated them hospitably: Sanders v. State, 60 Ga., 126; and see Baukus v. State, 4 Ind., 114, where persons were, under a statute, held guilty of riot for a mock serenade at night.

The act need not be in itself unlawful if it is done in a turbulent manner. "It is no way material whether the act intended to be done by such an assembly be of itself lawful or unlawful, from whence it follows that if more than three persons assist a man to make a forcible entry into lands to which one of them has a good right of entry, or if a like number in a violent and tumultuous manner join together in removing a nuisance or other thing, which may be lawfully done in a peaceful manner, they are as properly rioters as if the act intended to be done by them was never so unlawful, for the law will not suffer persons to seek redress of their private grievances by such dangerous disturbances of the public peace; however, the justice of the quarrel in which such an assembly doth engage is certainly a great mitigation of the offense." 1 Hawk. P. C., ch. 65, § 7; Kiphart v. State, 42 Ind., 273; State v. Brooks, 1 Hill (S. C.), 361. So an officer may be guilty of riot in serving process. Douglass v. State, 6 Yerg., 525.

A combination of persons, lawful in the first instance, may become guilty of riot by subsequent unlawful action, and this though they do not fully carry out the wrong purpose. State v. Snow, 18 Me., 346. It has been held that, to constitute riot, it is enough if the facts charged constitute an attempt to commit an act of violence. State v. York, 70 N. C., 66. (10) Since abolished

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 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 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) 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 100%. and three months' imprisonment. (11)

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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

(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. (1) See book III, page 174, &c. (m) 1 Hawk. P. C. 141.