CHAPTER THE ELEVENTH.

OF OFFENCES AGAINST THE PUBLIC PEACE.

WE are next to confider offences againft the public peace; the confervation of which is intrufted to the king and his officers, in the manner and for the reafons which were formerly mentioned at large ^a. Thefe offences are either fuch as are an actual breach of the peace; or conftructively fo, by tending to make others break it. Both of thefe fpecies are alfo either felonious, or not felonious. The felonious breaches of the peace are ftrained up to that degree of malignity by virtue of feveral modern ftatutes: and, particularly,

1. THE riotous affembling of twelve perfons, or more, and not difperfing upon proclamation. This was firft made high treafon by ftatute 3 & 4 Edw. VI. c. 5. when the king was a minor, and a change in religion to be effected: but that ftatute was repealed by ftatute 1 Mar. c. 1. among the other treafons created fince the 25 Edw. III; though the prohibition was in fubftance re-enacted, with an inferior degree of punifhment, by ftatute 1 Mar. ft. 2. c. 12. which made the fame offence a fingle felony. Thefe ftatutes fpecified and particularized the nature of the riots they were meant to fupprefs; as, for example, fuch as were fet on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other fpecific purpofes: in which cafes, if the perfons were

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^a Vol. I. pag. 117. 268. 350.
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commanded by proclamation to difperfe, and they did not, it was by the ftatute of Mary made felony, but within the benefit of clergy; and alfo the act indemnified the peace officers and their affiftants, it they killed any of the mob in endeavouring to fupprefs fuch riot. This was thought a neceffary fecurity in that fanguinary reign, when popery was intended to be re-eftablifhed, which was like to produce great difcontents: but at firft it was made only for a year, and was afterwards continued for that queen's life. And, by ftatute 1 Eliz. c. 16. when a reformation in religion was to be once more attempted, it was revived and continued duting her life alfo; and then expired. From the acceffion of James the firft to the death of queen Anne, it was never once thought expedient to revive it: but, in the firft year of George the firft, it was judged neceffary, in order to fupport the execution of the act of fettlement, to renew it, and at one ftroke to make it perpetual, with large additions. For, whereas the former acts expreffly defined and fpecified what fhould be accounted a riot, the ftatute 1 Geo. I. c. 5. enacts, generally, that if any twelve perfons are unlawfully affembled to the difturbance of the peace, and any one juftice of the peace, fheriff, under-fheriff, or mayor of a town, fhall think proper to command them by proclamation to difperfe, if they contemn his orders and continue together for one hour afterwards, fuch contempt fhall be felony without benefit of clergy. And farther, if the reading of the proclamation be by force oppofed, or the reader be in any manner willfully hindered from the reading of it, fuch oppofers and hinderers are felons, without benefit of clergy: and all perfons to whom fuch proclamation ought to have been made, and knowing of fuch hindrance, and not difperfing, are felons, without benefit of clergy. There is the like indemnifying claufe, in cafe any of the mob be unfortunately killed in the endeavour to difperfe them; being copied from the act of queen Mary. And, by a fubfequent claufe of the new act, if any perfons, fo riotoufly affembled, begin even before proclamation to pull down any church, chapel, meeting-houfe, dwelling-houfe, or out-houfes, they fhall be felons without benefit of clergy.
2. BY
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2. BY ftatute 1 Hen. VII. c. 7. unlawful hunting in any legal foreft, park, or warren, not being the king's property, by night, or with painted faces, was declared to be fingle felony. But now by the ftatute 9 Geo. I. c. 22. to appear armed in any open place by day, or night, with faces blacked or otherwife difguifed, or (being fo difguifed) to hunt, wound, kill, or fteal any deer, to rob a warren, or to fteal fifh, is felony without benefit of clergy. I mention this offence 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 difguife, to the breach of the public peace and the terror of his majefty's fubjects.

3. ALSO by the fame ftatute 9 Geo. I. c. 22. amende by ftatute 27 Geo. II. c. 15. knowingly to fend any letter without a name, or with a fictitious name, demanding money, venifon, or any other valuable thing, or threatening (without any demand) to kill, or fire the houfe of, any perfon, is made felony, without benefit of clergy. This offence was formerly high treafon, by the ftatute 8 Hen. V. c. 6.

4. To pull down or deftroy any turnpike-gate, or fence thereunto belonging, by the ftatute 1 Geo. II. c. 19. is punifhed with public whipping, and three months imprifonment; and to deftroy the toll-houfes, or any fluice or lock on a navigable river, is made felony to be punifhed with tranfportation for feven years, By the ftatute 5 Geo. II. c. 33. the offence of deftroying turnpike-gates or fences, is made felony alfo, with tranfportation for feven years. And, laftly, by ftatute 8 Geo. II. c. 20. the offences of deftroying both turnpikes upon roads, and fluices upon rivers, are made felony, without benefit of clergy; and may be tried as well in an adjacent county, as that wherein the fact is committed. The remaining offences againft the public peace are merely mifdemefnors, and no felonies: as,
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5. AFFRAYS (from affraier, to terrify) are the fighting of two or more perfons in fome public place, to the terror of his majefty's fubjects: for, if the fighting be in private, it is no affray but an affault ^b. Affrays may be fuppreffed by any private perfon prefent, who is juftifiable in endeavouring to part the combatants, whatever confequence may enfue ^c. But more efpecially the conftable, or other fimilar officer, however denominated, is bound to keep the peace; and to that purpofe may break open doors to fupprefs an affray, or apprehend the affrayers; and may either carry them before a juftice, or imprifon them by his own authority for a convenient fpace till the heat is over; and may then perhaps alfo make them find fureties for the peace ^d. The punifhment of common affrays is by fine and imprifonment; the meafure of which muft be regulated by the circumftances of the cafe: for, where there is any material aggravation, the punifhment proportionably increafes. As where two perfons 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 juftice of the nation, is a ftrong aggravation of the affray, though no mifchief has actually enfued ^e. Another aggravation is, when thereby the officers of juftice are difturbed in the due execution of their office: or where a refpect to the particular place ought to reftrain and regulate men's behaviour, more than in common ones; as in the king's court, and the like. And upon the fame account alfo all affrays in a church or church-yard are efteemed very heinous offences, as being indignities to him to whofe fervice thofe places are confecrated. Therefore mere quarrelfome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted by ftatute 5 & 6 Edw. VI. c. 4. that if any perfon fhall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary fhall fufpend him, if a layman, ab ingreffu ecclefiae; and, if a clerk in orders,

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^b 1 Hawk. P. C. 134.
^c Ibid. 136.
^d Ibid. 137.
^e Ibid. 138.
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from the miniftration of his office during pleafure. And, if any perfon in fuch church or church-yard proceeds to fmite or lay violent hands upon another, he fhall be excommunicated ipfo facto; or if he ftrikes him with a weapon, or draws any weapon with intent to ftrike, he fhall befides 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 perfons may be guilty of an affray: but,

6. RIOTS, routs, and unlawful affemblies muft have three perfons at leaft to conftitute them. An unlawful affembly is when three, or more, do affemble themfelves together to do an unlawful act, as to pull down inclofures, to deftroy 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 a common quarrel, as forcibly breaking down fences upon a right claimed of common, or of way; and make fome advances towards it ^g. A riot is where three or more actually do an unlawful act of violence, either with or without a common caufe or quarrel ^h: as if they beat a man; or hunt and kill game in another's park, chafe, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing a nufance, in a violent and tumultuous manner. The punifhment of unlawful affemblies, if to the number of twelve, we have juft now feen may be capital, according to the circumftances that attend it; but, from the number of three to eleven, is by fine and imprifonment only. The fame is the cafe in riots and routs by the common law; to which the pillory in very enormous cafes has been fometimes fuperadded ⁱ. And by the ftatute 13 Hen. IV. c. 7. any two juftices, together with the fheriff our under-fheriff of the county, may come with the poffe comitatus, if need be, and fupprefs any fuch riot, affembly, or rout, arreft the rioters, and record upon the fpot the nature and circumftances of the whole tranfaction;

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^f 3 Inft. 176.
^g Bro. Abr. Riot. 4. 5.
^h 3 Inft. 176.
^I 1 Hawk. P. C. 159.
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which record alone fhall be a fufficient conviction of the offenders. In the interpretation of which ftatute it hath been holden, that all perfons, noblemen and others, except women, clergymen, perfons decrepit, and infants under fifteen, are hound to attend the juftices in fuppreffing a riot, upon pain of fine and imprifonment; and that any battery, wounding, or killing the rioters, that may happen in fuppreffing the riot, is juftifiable ^j. So that our antient law, previous to the modern riot act, feems pretty well to have guarded againft any violent breach of the public peace; efpecially as any riotous affembly on a public or general account, as to redrefs grievances or pull down all inclofures, and alfo refifting the king's forces if fent to keep the peace, may amount to overt acts of high treafon, by levying war againft 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 ftatute 13 Car. II. ft. 1. c. 5. it is enacted, that not more than twenty names fhall be figned to any petition to the king or either houfe of parliament, for any alteration of matters eftablifhed by law in church or ftate; unlefs the contents thereof be previoufly approved, in the country, by three juftices, or the majority of the grand jury at the affifes or quarter feffions; and in London, by the lord mayor, aldermen, and common council ^k: and that no petition fhall be delivered by a company of more than ten perfons: on pain in either cafe of incurring a a penalty not exceeding 100 /., and three months imprifonment.

8. AN eighth offence againft the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping poffeffion, with menaces, force, and arms, of lands and tenements, without the authority of law. This was for-

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^j 1 Hal. P. C. 161.
^k This may be one reafon (among others) why the corporation of London has, fince the reftoration, ufually taken the lead in petitions to parliament for the alteration of any eftablifhed law.
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merly allowable to every perfon diffeifed, or turned out of poffeffion, unlefs his entry was taken away or barred by his own neglect, or other circumftances; which were explained more at large in a former volume ^l. But this being found very prejudicial to the public peace, it was thought neceffary by feveral ftatutes to reftrain all perfons from the ufe of fuch violent methods, even of doing themfelves juftice; and much more if they have no juftice in their claim ^m. So that the entry now allowed by law is a peaceable one; that forbidden is fuch as is carried on and maintained with force, with violence, and unufual weapons. By the ftatute 5 Ric. II. ft. 1. c. 8. all forcible entries are punifhed with imprifonment and ranfom at the king's will. And by the feveral ftatutes 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 juftices of the peace, taking fufficient power of the county, may go to the place, and there record the force upon him own view, as in cafe of riots; and upon fuch conviction may commit the offender to gaol, till he makes fine and ranfom to the king. And moreover the juftice or juftices have power to fummon a jury, to try the forcible entry or detainer complained of: and, if the fame be found by that jury, then befides the fine on the offender, the juftices fhall make reftitution by the fheriff of the poffeffion, without inquiring into the merits of the title; for the force is the only thing to be tried, punifhed, and remedied by them: and the fame may be done by indictment at the general feffions. But this provifion does not extend to fuch as endeavour to maintain poffeffion by force, where they themfelves, or their anceftors, have been in the peaceable enjoyment of the lands and tenements, for three years immediately preceding.

9. THE offence of riding or going armed, with dangerous or unufual weapons, is a crime againft the public peace, by terrifying the good people of the land; and is particularly prohibited

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^l See Vol. III. pag. 174, &c.
^m 1 Hawk. P. C. 141.
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by the ftatute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprifonment during the king's pleafure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour ⁿ.

10. SPREADING falfe news, to make difcord between the king and nobility, or concerning any great man of the realm, is punifhed by common law ^o with fine and imprifonment; which is confirmed by ftatutes Weftm. 1. 3 Edw. I. c. 34. 2 Ric. II. ft. 1. c. 5. and 12 Ric. II. c. 11.

11. FALSE and pretended prophecies, with intent to difturb the peace, are equally unlawful, and more penal; as they raife enthufiaftic jealoufies in the people, and terrify them with imaginary fears. They are therefore punifhed by our law, upon the fame principle that fpreading of public news of any kind, without communicating it firft to the magiftrate, was prohibited by the antient Gauls ^p. Such falfe and pretended prophecies were punifhed capitally by ftatute 1 Edw. VI. c. 12. which was repealed in the reign of queen Mary. And now by the ftatute 5 Eliz. c. 15. the penalty for the firft offence is a fine of 100 /., and one year's imprifonment; for the fecond, forfeiture of all goods and chattels, and imprifonment during life.

12. BESIDES actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the fame denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of fuch challenge, are punifhable by fine and imprifonment, according to the circumftances of the offence ^q. If this challenge arifes on account of any mo-

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ⁿ Pott. Antiqu. b. 1. c. 26.
^o 2 Inft. 226. 3 Inft. 198.
^p “Habent legibus fanctum, fi quis quid de “republica a finitimis rumore aut fama acceperit, “uti ad magiftratum deferat, neve cum alio “communicet: quod faepe bomines temerarios “atque inperitos falfis rumoribus terreri, et “ad facinus impelli, et de fummis rebus confilium capere, cognitum eft.” Caef. de bell. Gall. lib. 6. cap. 19.
^q 1 Hawk. P. C. 135. 138.
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ney won at gaming, or if any affault or affray happen upon fuch account, the offender, by ftatute 9 Ann. c. 14. fhall forfeit all his goods to the crown, and fuffer two years imprifonment.

13. OF a nature very fimilar to challenges are libels, libelli famofi, which, taken in their largeft and moft extenfive fenfe, fignify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the fenfe under which we are now to confider them, are malicious defamations of any perfon, and efpecially a magiftrate, made public by either printing, writing, figns, or pictures, in order to provoke him to wrath, or expofe him to public hatred, contempt, and ridicule ^r. The direct tendency of thefe libels is the breach of the public peace, by ftirring up the objects of them to revenge, and perhaps to bloodfhed. The communication of a libel to any one perfon is a publication in the eye of the law ^s: and therefore the fending an abufive 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 ^t. For the fame reafon it is immaterial with refpect to the effence of a libel, whether the matter of it be true or falfe ^u; fince the provocation, and not the falfity, is the thing to be punifhed criminally: though, doubtlefs, the falfhood of it may aggravate it's guilt, and enhance it's punifhment. In a civil action, we may remember, a libel muft appear to be falfe, as well as fcandalous ^w; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compenfation for himfelf, whatever offence it may be againft the public peace: and therefore, upon a civil action, the truth of the accufation may be pleaded in bar of the fuit. But, in a criminal profecution, the tendency which all libels have to create animofities, and to difturb the public peace, is the fole confideration of the law. And therefore, in fuch profecutions,

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^r 1 Hawk. P. C. 193.
^s Moor. 813.
^t 2 Brownl. 151. 12 Rep. 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195.
^u Moor. 627. 5 Rep. 125. 11 Mod. 99.
^w See Vol. III. pag. 125.
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the
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the only facts to be confidered are, firft, the making or publifhing of the book or writing; and fecondly, whether the matter be criminal: and, if both thefe points are againft the defendant, the offence againft the public is complete. The punifhment of fuch libellers, for either making, repeating, printing, or publifhing the libel, is fine, and fuch corporal punifhment as the court in their difcretion fhall inflict; regarding the quantity of the offence, and the quality of the offender ^x. By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Auguftus, the punifhment became corporal only ^y. Under the emperor Valentinian ^z it was again made capital, not only to write, but to publifh, or even to omit deftroying them. Our law, in this and many other refpects, correfponds rather with the middle age of Roman jurifprudence, when liberty, learning, and humanity, were in their full vigour, than with the cruel edicts that were eftablifhed in the dark and tyrannical ages of the antient decemviri, or the later emperors.

IN this, and the other inftances which we have lately confidered, where blafphemous, immoral, treafonable, fchifmatical, feditious, or fcandalous libels are punifhed by the Englifh law, fome with a greater, others with a lefs degree of feverity; the liberty of the prefs, properly underftood, is by no means infringed or violated. The liberty of the prefs is indeed effential to the nature of a free ftate: but this confifts in laying no previous reftraints upon publications, and not in freedom from cenfure for criminal matter when publifhed. Every freeman has an undoubted right to lay what fentiments the pleafes before the public: to forbid this, is to deftroy the freedom of the

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^x 1 Hawk. P. C. 196.
^y ________________ Quinetiam lex Poenaque lata, malo quae nollet carmine quenquam Defcribi: ______ vertere modum formidine fuftis. Hor. ad Aug. 152.
^z Cod. 9. 36.
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prefs:
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prefs: but if he publifhes what is improper, mifchievous, or illegal, he muft take the confequence of his own temerity. To fubject the prefs to the reftrictive power of a licenfer, as was formerly done, both before and fince the revolution ^a, is to fubject all freedom of fentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punifh (as the law does at prefent) any dangerous or offenfive writings, which, when publifhed, fhall on a fair and impartial trial be adjudged of a pernicious tendency, is neceffary for the prefervation of peace and god order, of government and religion, the only folid foundations of civil liberty. Thus the will of individuals is ftill left free; the abufe only of that free will hereby laid upon freedom, of thought or enquiry: liberty of private fentiment is ftill left; the diffeminating, or making public, of bad fentiments, deftructive of the ends of fociety, is the crime which fociety corrects. A man (fays a fine writer on this fubject) may be allowed to keep poifons in his clofet, but not publicly to vend them as cordials. And to this we may

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^a The art of printing, foon after it's introduction, was looked upon (as well in England as in other countries) as merely a matter of ftate, and fubject to the coercion of the crown. It was therefore regulated with us by the king's proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of ftarchamber; which limited the number of printers, and of preffes which each fhould employ, and prohibited new publications unlefs previoufly approved by proper licenfers. On the demolition of this odious jurifdiction in 1641, the long parliament of Charles I, after their rupture with that prince, affumed the fame powers as the ftarchamber exercifed with refpect to the licenfing of books; and in 1643, 1647, 1649, and 1652, (Scobell. i. 44, 134. ii 88, 230.) iffued their ordinances for that purpofe, founded principally on the ftarchamber decree of 1637. In 1662 was paffed the ftatute 13 & 14 Car. II. c. 33. which (with fome few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by ftatute 1 Jac. II. c. 17. and continued till 1692. It was then continued for two years longer by ftatute 4 W. & M. c. 24. but, though frequent attempts were made by the government to revive it, in the fubfequent part of that reign, (Com. Journ. 11 Feb. 1694. 26 Nov. 1695. 22 Oct. 1696. 9 Feb. 1697. 31 Jan. 1698.) yet the parliament refifted it fo ftrongly, that it finally expired, and the prefs became properly free, in 1694; and has ever fince fo continued.
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add,
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add, that the only plaufible argument heretofore ufed for reftraining the juft freedom of the prefs, “that it was neceffary “to prevent the daily abufe of it,” will entirely lofe it's force, when it is fhewn (by a feafonable exertion of the law) that the prefs cannot be abufed to any bad purpofe, without incurring a fuitable punifhment: whereas it never can be ufed to any good one, when under the control of an infpector. So true will it be found, that to cenfure the licentioufnefs, is to maintain the liberty, of the prefs.

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