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 CHAPTER XI. OF OFFENCES AGAINST THE PUBLIC PEACE *WE are next to consider offences against the public peace; the con*142] servation 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 & 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 c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by statute 1 Mar.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 created since the 25 Edw. III.; though the prohibition was in substance reenacted, 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 endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was not grant a rule. Rex vs. Barron, 3 B. & A. 432. That case seems to lay down the general rule upon this subject clearly and definitively.-CHITTY. 30 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 13s. 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. 1 Bla. Rep. 204. There are no accessories in extortion. 1 Stra. 75.-CHITTY. 1 It does not seem necessary that twelve persons should have been guilty to constitute a riotous assembly within the acts. See Doug. 1st ed. 673; 2d ed. 699. 5 T. R 14. 2 Saund. 377, b. n. 12-CHITTY. 2 [ *143 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. 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. 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 hinderance, 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 endeavour 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. 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, 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 kept, or in any warren for hares or coneys, or in any high*road, open heath, common, [*144 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. I mention these of '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. These provisions were by subsequent statutes extended to every description of mills and the works attached to them, to buildings or machinery for carrying on any kind of trade or manufacture, or for warehousing goods or merchandise, and to houses, shops, and buildings, with the fixtures, furniture, goods, and commodities whatsoever contained therein. And now, by 7 & 8 Geo. IV. c. 30, s. 8, it is provided that if any persons, riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, any church or chapel, or any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hopoast, barn, or granary, or any building or erection used in carrying on any trade or manu facture, or any machinery, fixed or movable, prepared for or employed in any manufacture, or any steam-engine or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such offender shall be guilty of felony, and, on conviction, shall suffer death as a felon.CHITTY. But, 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. 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. ÎV. c. 54, s. 3, which subjected the party to transportation or imprisonmen at the discretion of the court. The latter act, how 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 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 pun down or otherwise destroy *145] 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. 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 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. '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 navi gable 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; 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; 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 them. selves 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. () Ibid. 138. Ibid. 137. 7 By 9 Geo. IV. c. 31, s. 1, "so much of 5 & 5 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 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 *147] and tumultuous manner. *The punishment of unlawful assemblies, if to the number of twelve, we have just now seen, may be capital, accord ing 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) and that no petition shall be delivered by a company of more than ten *148] Bro. Abr. tit. Riot, 4, 5. (*) 3 Inst. 176. () 1 Hawk. P. C. 159. (5) 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. |