22. Lastly, extortion (71) is an abuse of public justice, which consists in any officer's unlawfully taking, by color of his office, from any man, any money or thing 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. (72)

CHAPTER XI.

OF OFFENCES AGAINST THE PUBLIC PEACE.

*WE are next to consider offences against the public peace; (1) the [*142 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 (2) 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 c. 5, when the king was a minor, and a change in religion to be effected; but that statute was repealed by statute 1 Mar.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 (u) 1 Hawk. P. C. 170. (a) Book i. pp. 118, 268, 350.

to

(71) A promise to pay a person for doing any act which he is already bound to do is void, on the ground that the contract is extortionate. Story on Contracts, 5 ed. (Bigelow), vol. I, 703, p. 683. "It [extortion] is the corrupt demanding or receiving by a person in office, of a fee for services which should be rendered gratuitously; or where compensation is permissible, of a larger fee than the law justifies, or a fee not yet due." Bishop, Cr. L. 2, & 390, p. 225. An indictment charging the defendant, a jailer, with the offence of extortion, by wilfully and corruptly compelling a prisoner to pay him money which he was not entitled-Held to be good, and that the facts set forth were sufficient to constitute the offence charged. Commonwealth v. Mitchell, 3 Bush. (Ky.) 25, 26 (1867). State v. Oden, 10 Ind. App. 136, 137 (1894). A mere threat to sue does not constitute extortion. State v. White, 10 Richardson (S. C.) 442, 447 (1857). "Extortion in a large sense signifies any oppression under color of right." Archbold, Crim. Pl. & Pr. 2, 1368, 1369. Id. Russell on Crimes, 1, *208. See Malone's Crim. Briefs, p. 360. Bishop, Cr. L. 573, p. 354. Also, State v. Pritchard, 107 N. C. 921, 926 (1890).

(72) 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 135. 4d. from every defendant who pleads to a joint information, or above 25. 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 accessaries in extortion. I Stra. 75.-CHITTY.

(1) Offences against the public peace include all acts affecting the public tranquillity, such as assaults and batteries, riots, routs and unlawful assemblies, forcible entry and detainer, etc." City of Corvallis v. Carlile, 10 Ore. 139, 142 (1882).

(2) It does not seem necessary that twelve persons should have been guilty to constitute

life.

created since the 25 Edw. III.; though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute i 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 endeavoring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established *143] *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 And, by statute i 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. (3) 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 hindrance, 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 endeavor 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.(4)

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 *144] kept, or in any warren for hares or coneys, 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

a riotous assembly within the acts. See Doug. I ed. 673; 2 ed. 699. 5 T. R. 14. 2 Saund. 377, b. n. 12.-CHITTY. There are English statutes, ancient as well as comparatively modern, making the riotous assembling of twelve or more persons, under circumstances and for purposes specified, a heavier offence (than for riot), but we have no reported attempts to give them a common-law force in this country." Bishop, Cr. L. 1, 8 534, P. 329. (3) But, by stat. I 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.

(4) 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. See 49 & 50 Vict. c. 38.

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.(5) 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, out-houses, barns, or ricks, is made felony without benefit of clergy. (6) 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 pull down or otherwise destroy any turnpike-gate or fence, tollhouse or *weighing-engine thereunto belonging, erected by authority [*145 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. (7) 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, to the terror of his majesty's subjects, (8) for if

(5) 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 accessaries 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.

(6) "Later English statutes have revised and superseded the foregoing; as, 7 & 8 Geo. IV. c. 29, 8. 7 Will. IV. and 1 Vict. c. 87, § 7. 10 & 11 Vict. c. 66, I. 24 & 25 Vict. c. 96, 45, 47 and c. 97. With us more of the English enactments appear to be within the rules making them common law, or to have been accepted as such. But in a part of our states, if not all, there are statutes modelled more or less after the English ones." Bishop, Cr. L. 2, 1200, p. 691.

(7) See stat. 24 & 25 Vict. c. 97, concerning malicious injuries to property.

(8) Russell on Crimes, 1, *145. Wilkes v. Jackson, 2 Hen. & M. (Va.) 355, 359, 360 (1808). Archbold, Crim. Pl. & Pr. 2, 1709. To constitute an affray there must be (1) a fighting; (2) the fighting must be between two or more persons; (3) it must be in some public place. An indictment charging "that A. B. with force and arms being arrayed in a warlike manner in a certain public street and highway, unlawfully and to the great terror of the people, an affray did make," etc., does not charge an indictable offence. Simpson v. The State, 5 Yerger (Tenn.) 356, 357 (1833). An indictment for an affray must charge the fighting to have been in a public place. An allegation that it took place in the town of C. is not

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 endeavoring 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) *146] *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 behavior 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. (9) 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, (10) 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; (11) 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. (12) Two persons may be guilty of an affray: but,

6. Riots, routs, and unlawful assemblies must have three persons at least to constitute them. (13) An unlawful assembly is when three or more do

sufficient. It might have been in the town of C. and yet out of the sight and hearing of all but the parties concerned. State v. Heflin, 8 Humphreys (Tenn.) 84, 85 (1845). "An affray differs from a riot in this; that two persons may be guilty of it, whereas three persons at least are necessary to constitute a riot, in its legal sense." Barb. Cr. L. 1, *227, p. 410. "Of a nature similar to riot and its two related offences, is affray; being the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. It is indictable at the common law." Bishop, Cr. L. 1, 535, p. 329. Malone Crim. Briefs, p. 179.

To support a prosecution for an affray the prosecutor must prove, in addition to the requisites given in the text, that in the affray or fighting there must be a stroke given or offered, or weapon drawn, otherwise it is not an affray. Archbold's Crim. Pl. & Pr. vol. 2, 1712.

(9) See stat. 18 & 19 Vict. c. 86.

(10) [From entering the church.]

(11) [By the fact itself.]

(12) Ex parte Wurtele, I Lower Canada Reports, 414, 433 (1851).

(13) By stat. 23 & 24 Vict. c. 32, if any person shall be guilty of riotous, violent, or indecent behavior in any cathedral, church, etc., whether during the celebration of divine service or at any other time, or in any church yard or burial ground, who shall molest, etc. any duly authorized preacher or person in holy orders, ministering or celebrating any sacrament or divine service, etc. shall upon conviction be imprisoned for a time not longer than two months.

assemble themselves together to do an unlawful act, (14) as to pull down enclosures, to destroy a warren or the game therein, and part without doing it or making any motion towards it.(ƒ)(15)(16) 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. (17) *The punishment of unlawful assemblies, [*147

(14) Riot, rout and unlawful assembly.-"The distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose, which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute." Russell on Crimes, 1, *378. Id. Archbold, Crim. Pl. & Pr. 2, *1697, 1698. See Bishop, Cr. L. 1, 534, p. 328.

(15) 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, 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. 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 permited 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. Archbold, Crim. Pl. & Pr. 2, 1708. "The same proof (as for unlawful assembly) is required for rout, and in addition thereto that some advances were made toward accomplishing the object.'

(16) "To support this charge, it must be shown that three or more persons assembled with a preconcerted purpose to do some unlawful act." Bailey's Onus Probandi, p. 458. "The third subdivision of section 451 of the Penal Code, under which the defendant was indicted, requires that in order to constitute the offence of unlawful assembly, three or more persons being assembled, should attempt or threaten any act 'tending towards a breach of the peace, or an injury to person or property, or any unlawful act.' The offence can only be committed when there is a concert or combination of three or more persons who unite in the attempt or in the threat to do one or more of the things specified in the statute. A threat made by one or by two persons only, in which no others participated, would not be indictable under this statute, although made in an assembly of many persons. It was also the rule of the common law that three or more persons should be assembled and participate in the unlawful purpose, in order to constitute the offence of unlawful assembly, or the cognate offences of rout and riot." People v. Most, 128 N. Y. 108, 113, 114 (1891).

(17) To constitute a riot, the parties must act without any authority to give color 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, etc. 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 objeet 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. I 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.