Front Page Titles (by Subject) CHAPTER XI.: OF OFFENCES AGAINST THE PUBLIC PEACE. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XI.: OF OFFENCES AGAINST THE PUBLIC PEACE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF OFFENCES AGAINST THE PUBLIC PEACE.
**142]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 twelve1 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 c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by statute 1 Mar.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 intended to be re-established *[*143which 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 I 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.2 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.3
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*[*144road, 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.4 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 fictious 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.5 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 any turnpike-gate or fence, toll-house or **145]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.6 The remaining 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 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) *[*146Another 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 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.7Two 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 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 **147]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.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)11 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, **148]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 100l. and three months’ imprisonment.12
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.(l) 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 sessions. But this provision does not extend to such as endeavour to maintain possession by force where they *[*149themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenements for three years immediately preceding.(n)
9. The offence 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 armour.(o)
10. Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punishable by common law(p) with fine and imprisonment, which 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 antient Gauls.(q) 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 5 Eliz. c. 15, the penalty for the first offence is a fine of ten pounds and one year’s imprisonment; for the second, forfeiture of all goods and chattels and imprisonment during life.
**150]12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it is an offence 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 offence.(r)13 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 Anne, c. 14, shall forfeit all his goods to the crown and suffer two years’ imprisonment.
13. Of a nature very similar to challenges are libels, libelli 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.(s) 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;(t) and therefore the sending an abusive 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.(u) 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.14 In a civil 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 **151]offence it may be against 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 offence against the public is complete.15 The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine and such corporal punishment as the court in its discretion shall inflict, regarding the quantity of the offence and the quality of the offender.(x)16 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 Augustus the punishment became corporal only.(y) Under the emperor Valentinian(z) it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law in this and many other respects corresponds rather with the middle age of Roman jurisprudence, when liberty, learning, and humanity were in their full vigour, than with the cruel edicts that were established in the dark and tyrannical ages of the antient decemviri or the later emperors.
In this and the other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less, degree of severity, the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and **152]not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press, but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution,(a) is to subject all freedom of sentiment 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 punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a *[*153fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly vend them as cordials. And to this we may add that the only plausible argument heretofore used for the restraining the just freedom of the press, “that it was necessary, to prevent the daily abuse of it,” will entirely lose its force when it is shown (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose without incurring a suitable punishment; whereas it never can be used to any good one when under the control of an inspector. So true it will be found that to censure the licentiousness is to maintain the liberty of the press.
[(a) ] Book i. pp. 118, 268, 350.
[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 ] 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.
[3 ] 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 manufacture, 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.
[4 ] 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 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 50l., and repeating such offence is deemed felony and punishable as a simple larceny.—Chitty.
[5 ] 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 navigable 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 statutes or monuments exposed to public view, is a misdemeanour, and punishable with fine and imprisonment.—Stewart.
[(b) ] 1 Hawk. P. C. 134.
[(c) ] Ibid. 136.
[(d) ] Ibid. 137.
[(e) ] Ibid. 138.
[7 ] By 9 Geo. IV. c. 31, s. 1, “so much of 5 & 6 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.
[(f) ] 3 Inst. 176.
[8 ] 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 disturbance 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 permitted 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.
[(g) ] Bro. Abr. tit. Riot, 4, 5.
[(h) ] 3 Inst. 176.
[9 ] 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.
[(i) ] 1 Hawk. P. C. 159.
[11 ] But now the pillory is abolished, by 56 Geo. III. c. 138.—Chitty.
[(j) ] 1 Hal. P. C. 495. Ibid. 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.
[12 ] In the trial of lord George Gordon, it was contended that the article of the Bill of Rights which declares that it is the right of the subject to petition the king, and that all commitments and prosecutions for such petitioning are illegal, had virtually repealed this statute. This, however, was denied by lord Mansfield in the name of the court. Doug. 592.—Coleridge.
[(l) ] See book iii. p. 174, &c.
[(m) ] 1 Hawk. P. C. 141.
[(n) ] Holding over by force, where the tenant’s title was under a lease now expired, is said to be a forcible detainer. Cro. Jac. 199.
[(o) ] Pott. Antiq. b. i. c. 26.
[(p) ] 2 Inst. 226. 3 Inst. 198.
[(q) ] “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 teme varios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consitium capere cognitum est.” Cæs. de Bell. Gall. lib. 6, cap. 19.
[(r) ] 1 Hawk. P. C. 135, 138.
[13 ] The offences of fighting duels and sending or provoking challenges are fully considered by Mr. J. Grose, in passing sentence on Rice, convicted on a criminal information for a misdemeanour of the latter kind. 3 East, 581, where the opinions of the earlier writers are collected. It is an offence though the provocation to fight do not succeed, (6 East, 464. 2 Smith, 550;) and it is a misdemeanour merely to endeavour to provoke another to send a challenge. 6 East, 464. But mere words which, though they may produce a challenge, do not directly 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 could be shown that they were meant to provoke a challenge. A challenge is one of those offences for which a criminal information will be granted by the court of King’s Bench, though this will not be done where the party applying has himself first incited the proposal. 1 Burr. 316.—Chitty.
[(s) ] Ibid. 193.
[(t) ] Moor. 813.
[(u) ] 2 Brown, 115. 12 Rep. 35. Hob. 215. Poph. 139. [Editor: illegible character] Hawk. P. C. 195.
[(v) ] Moor. 627. 5 Rep. 125. 11 Mod. 99.
[14 ] The words of lord Mansfield, “the greater truth, the greater libel,” which his enemies wished with much eagerness to convert to the prejudice of that noble peer’s reputation as a judge, were founded in principle and supported by very ancient authority.
Lord Coke has said, “that the greater appearance there is of truth in any malicious invective, so much the more provoking it is.” 5 Co. 125.
Where truth is a greater provocation than falsehood, and therefore has a greater tendency to produce a breach of the public peace, then it is certainly true that the greater truth, the greater libel. Asperis facetiis inlusus, quæ ubi multum ex vero traxere, acrem sui memoriam relinquunt. Tac. Ann. 15, c. 68.—Christian.
[(w) ] See book iii. page 125.
[15 ] But a modification of this rule has been recently admitted by the legislature; and it has been enacted, by stat. 6 & 7 Vict. c. 96, s. 6, that on the trial of any indictment or information for a libel, the defendant having pleaded such plea as hereinafter is mentioned, the truth of the matter charged may be inquired into, but shall not amount to a defence unless it was for the public benefit that the matter charged should be published; and to entitle the defendant to give evidence of the truth of the matters charged, as a defence to such indictment or information, it shall be necessary for the defendant in pleading to the indictment or information to allege the truth of the said matters; and also that it was for the public benefit that the matters charged should be published; to which plea the prosecutor may reply generally; and if after such plea the defendant shall be convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea. But it is provided that in addition to such plea the defendant may plead a plea of not guilty. And, by sect. 7, whenever upon the trial of any such indictment or information, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication by the act of any other person by his authority, the defendant may prove that such publication was made without his authority or consent.—Stewart.
In most of the United States provision is made either in their constitutions or statutes on this subject similar to the provisions of 6 & 7 Vict. In those States where there is no statutory or constitutional limitation the common-law doctrine remains in force. Com. vs. Clapp, 4 Mass. 163. Com. vs. Snelling, 15 Pick. 337. State vs. Allen, 1 McCord, 525. State vs. Burnham, 9 N. Hamp. 34. In one celebrated case the Supreme Court of New York were equally divided. People vs. Croswell, 3 Johns. Cases, 337. But as it may be shown that the publication was for a justifiable purpose, and not malicious nor with the intent to defame, so there may be cases where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, where such evidence will tend to negative the malice and intent to defame. Wharton’s Amer. Crim. Law, 850. Com. vs. Buckingham, 2 Wheeler’s C. C. 438.—Sharswood.
[(x) ] 1 Hawk. P. C. 196.
[16 ] Though it has been held—at least for these two centuries—that the truth of a libel is no justification in a criminal prosecution, yet in many instances it is considered an extenuation of the offence; and the court of King’s Bench has laid down this general rule,—viz., that it will not grant an information for a libel unless the prosecutor who applies for it makes an affidavit asserting directly and pointedly that he is innocent of the charge imputed to him. But this rule may be dispensed with if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament. Doug 271, 372.
It had frequently been determined by the court of King’s Bench that the only questions for the consideration of the jury in criminal prosecutions for libel were the fact of publication and the truth of the innuendoes,—that is, the truth of the meaning and sense of the passages of the libel as stated and averred in the record; and that the judge or court alone were competent to determine whether the subject of the publication was or was not a libel. See the case of The Dean of St. Asaph, 3 T. R. 428. But, the legality of this doctrine having been much controverted, the 32 Geo. III. c. 60 was passed, entitled An act to remove doubts respecting the functions of juries in cases of libels. And it declares and enacts that on every trial of an indictment or information for a libel the jury may give a general verdict of guilty, or not guilty, upon the whole matter in issue, and shall not be required or directed by the judge to find the defendant guilty merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to it in the record. But the statute provides that the judge may give his opinion to the jury respecting the matter in issue, and the jury may at their discretion, as in other cases, find a special verdict, and the defendant, if convicted, may move the court, as before the statute, in arrest of judgment.
A person may be punished for a libel reflecting on the memory and character of the dead; but it must be alleged and proved to the satisfaction of the jury that the author intended by the publication to bring dishonour and contempt on the relations and descendants of the deceased. 4 T. R. 126.
It is not a libel to publish a correct copy of the reports or resolutions of the two houses of parliament, or a true account of the proceedings of a court of justice. “For though,” as Mr. Justice Lawrence has well observed, “the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.” Rex vs. Wright, 8 T. R. 293.
But this will not apply to the publication of part of a trial before it is finally concluded; for that might enable the friends of the parties to pervert the justice of the court by the fabrication of evidence and other impure practices.
Nor ought it to extend to the publication of trials where indecent evidence must from necessity be introduced; for it would be in vain to turn women and children out of court if they are afterwards permitted to read what has passed in their absence.
Lord Hardwicke has declared that any publication which shall prejudice the world with regard to the merits of a cause before it is heard is a contempt of the court in which the cause is pending; and he committed upon a summary motion only the parties who had been guilty of such a publication. 2 Atk. 472.
The reason must be much stronger for suppressing partial and premature publications upon subjects which may be tried by a jury.
The sale of the libel by a servant in a shop is prima facie evidence of publication in a prosecution against the master, and is sufficient for conviction, unless contradicted by contrary evidence showing that he was not privy nor in any degree assenting to it. Ibid.; and 5 Burr. 2686. When a person is brought to receive judgment for a libel, his conduct subsequent to his conviction may be taken into consideration, either by way of aggravation or mitigation of the punishment. 3 T. R. 432. And when Johnson the bookseller was brought up for judgment for having published a seditious libel, the attorney-general produced an affidavit that the defendant after his conviction had published the same libel in the Analytical Review. M. T. 1798.
An information or an indictment need not state that the libel is false or that the offence was committed by force and arms. 7 T. R. 4.
Hanging up or burning an effigy with intent to expose some particular person to ridicule and contempt is an offence of the same nature as a libel, and has frequently been punished with great but proper severity.—Christian.
[(z) ]Cod. 9, 36.
[(a) ] The art of printing, soon after its introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated with us by the king’s proclamations, prohibitions, charters of privileges and of license, and finally by the decrees of the court of starchamber, which limited the number of printers and of presses which each should employ, and prohibited new publications, unless previously approved by proper licensers. On the demolition of this odious jurisdiction, in 1641, the long parliament of Charles I., after their rupture with that prince, assumed the same powers as the starchamber exercised with respect to the licensing of books, and in 1643, 1647, 1649, and 1652 (Scobell, i. 44, 134; ii. 88, 230) issued their ordinances for that purpose, founded principally on the starchamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. II. c. 33, which (with some few alterations) was copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. II. c. 17, and continued till 1692. It was then continued for two years longer by statute 4 W. and M. c. 24; but though frequent attempts were made by the government to revive it, in the subsequent part of the reign, (Com. Jour. 11 Feb. 1694, 26 Nov. 1695, 22 Oct. 1696, 9 Feb. 1694, 31 Jan. 1698.) yet the parliament resisted it so strongly that it finally expired; and the press became properly free in 1694, and has ever since so continued.