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. (18) 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)(19) 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 (20) 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.)(21) So that our ancient law, previous to the modern riot act, seems pretty well to have guarded against any violent breach of the public peace, especially as any riotous assembly on a public or general account, as, to redress grievances or pull down all enclosures, and also resisting the king's forces if sent to keep the peace, may amount to overt acts of high treason by levying war against the king. (22) 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. (23) (1) 1 Hawk. P. C. 159. (j) 1 Hal. P. C. 495. Ibid. 161. (*) 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. "The essence of the riot in some cases is the terrorem populi [Terror of the people]. In such cases it is necessary to aver the fact. In others the essence may be the committing some unlawful act with violence, or in a violent and tumultuous manner; in such cases it seems necessary that the aforesaid words should be used. Mr. Greenleaf (3 vol. sec. 219,) says: "If the indictment charges the actual perpetration of a deed of violence, such as assault and battery, etc., it is not necessary to allege or prove that it was done to the terror of the people, but proof of all the other circumstances alleged will support the indictment without proving directly any terror." State v. Sims, 16 S. C. (Shand) 486, 490 (1881). "But if persons innocently and lawfully assembled, afterwards confederate to do an unlawful act of violence, suddenly proposed and assented to, and thereupon do an act of violence, in pursuit of such purpose, this is a riot." State v. Snow, 18 Me. 346, 347 (1841). "In order to make out a riot at common law, an unlawful assemblage must be shown, and if a number of persons lawfully assembled, suddenly and without premeditation, fell together, it was only an affray; but if being thus assembled, they concoct a breach of the peace, and in pursuance thereof execute it, this is a sufficient assemblage to make it a riot." Doughty et al. v. People, 4 Ill. 179, 180 (1843). (18) By the 3 Geo. IV. c. 144, hard labor must be imposed.—CHITTY. (19) But now the pillory is abolished, by 56 Geo. III. c. 138.-CHITTY. (20) [The power of the county.] (21) Russell on Crimes, *403. (22) Id. *389. 2 Archbold, Crim. Pl. & Pr. 1698. (23) 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. 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. (24) This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances, which were explained more at large in a former book. (1) But, this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no justice in their claim. (m) So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained (7) See book iii. p. 174, etc. (m) 1 Hawk. P. C. 141. " (24) "It is necessary, . . under the English statutes, to aver either a leasehold or a freehold in the prosecutor; though proof of actual possession is sufficient to support the allegation in the indictment that the complainant was seized in fee simple. Wharton, Cr. L. 2, 1108, p. 32. "Under 5 Ric. II., the prosecutor must aver a freehold, and under 21 Jac. I. a leasehold; but it seems proof that he was in actual occupation of the premises, or in reception of the rents and profits, is sufficient evidence of seisin." Wharton, Cr L. 2, 1104, p. 31. "To enter, with intent to keep possession, constitutes the offence of forcible entry. Of this there may be a conviction without proving a forcible detainer." Wharton, Cr. L. 2, ? 1083, p. 21. See Russell on Crimes, 1, *421. The remedies against such as are guilty of forcible entries or detainers are either by action, by complaint to justices of the peace (who may proceed upon view or inquisition,) or by indictment at the general sessions. And if a forcible entry or detainer be made by three persons or more, it is a riot; and may be proceeded against as such, if no inquiry has before been made of the force." Russell on Crimes, 1, *428. "A forcible entry is one's entry on another's real estate, or in special circumstances on his own, of a nature to be the subject of a personal occupation, made with an array of force adapted to create terror in those present opposing. A forcible detainer is a detaining of the possession of such estate, to which the person has no perfect title, by force of the same kind. It has been said that one disseised of his lands might by the ancient common law employ force to any degree necessary to regain the possession. And this might have been so in civil jurisprudence; because, if a plaintiff were in the wrong in holding the possession, he was in no situation to complain of the defendant's wrong in expelling him, where the latter was the true owner. But there is likewise another doctrine of the common law; namely, that no one has the right to enforce a claim, however just, by the commission of a breach of public order and tranquillity. Consequently, it is now established that forcible entry, and in some circumstances forcible detainer, are indictable crimes, without regard to any statute, English or American." Bishop, Cr. L. 2, 22 489, 490, pp. 280, 281. See Woodfall's Landlord and Tenant, I Am. ed. (Webster), vol. 2,*843, p. 1276. Archbold, Crim. Pl. & Pr. 2, 1130. "The different acts of parliament have been held in England not to repeal the common law in relation to forcible entry, but to provide additional legislation on the subject. Hence, in an indictment at common law, it was necessary to allege merely that the complainant was in the peaceable possession of the premises entered upon, while under the statute of 8 Hen. 6 or 31 Eliz., it was necessary to allege that the prosecutor was seised in fee in the premises; and in an indictment under the statute of 21 Jac. I., that the complainant was seised of a freehold, or was possessed for a term of years, because restitution of the land was the principal reason for indicting, and at common law there could be no restitution, and, under the statutes, no restitution to one seised or possessed of an estate less than that mentioned in them." State v. Morgan, 59 N. H. 322, 323 (1879). "A party peaceably in the actual possession of lands at the time of a forcible entry, or in the constructive possession thereof at the time of a forcible holding over, is entitled to proceed under the statute of forcible entry and detainer, though he is neither seised of a freehold nor possessed of a term of years in the premises." Boardman v. Thompson, 3 Montana, 387, 391 (1879). A proceeding for forcible entry and detainer is not one in which the title to the premises can be brought in question. It is a summary proceeding in which an actual peaceable possession of the premises must be shown to have been forcibly taken away, or invaded by the defendant. If a peaceable possession be shown to have been invaded or taken away by force, the law will restore it, even though the defendant be able to show a perfect title in himself. The Wisconsin statute is taken from the English statute, 5 Rich. II. The intention of this, as well as of all other enactments on the same subject, is to restrain all persons from the use of forcible or violent means of doing themselves justice. Gates v. Winslow, I Wis. 555, 559 (1853). with force, with violence and unusual weapons. (25) 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. (26) But this provision does not extend to such as endeavor to maintain possession *149] by force where they *themselves, 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, (27) upon pain of forfeiture of the arms and imprisonment during the (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. (25) "The owner of land who is wrongfully held out of possession by one who has no legal or equitable right, may embrace the opportunity and gain peaceable possession if he can; but unless he can obtain possession without force or show of violence, his sole remedy is to invoke the aid of legal proceedings, To this end a special statutory proceeding has been provided," etc. Scott v. Willis, 122 Ind. 1, 2 (1889). (26) For a general discussion of the common law remedy for unlawful detainer, see Thorn v. Reed, 1 Ark. 480, 493 (1839). "The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. . . . It is urged that the owner of real estate has a right to enter upon and enjoy his own property. Undoubtedly, if he can do so without a forcible disturbance of the possession of another; but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant, and hence the common law right to use all necessary force has been taken away. He may be wrongfully kept out of possession, but he cannot be permitted to take the law into his own hands and redress his own wrongs. .. In Illinois, it has been constantly held that any entry is forcible, within the meaning of this law, which is made against the will of the occupant. The statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be therefore held illegal in all forms of action. Reeder v. Purdy, 41 Ill. 279, 285 (1866). Approved in Chicago v. Wright, 69 Ill. 318 (1873). See Hyatt v. Wood, 4 Johns. 150. Ives v. Ives, 13 id. 235. (27) This offence existed at the common law and the statute of Northampton was made in affirmance of the common law. The offence consists not so much in carrying a gun, as in the wicked purpose and mischievous result of going about with that or any other dangerous weapon, to terrify and alarm, and in such a manner as naturally will terrify and alarm. State v. Huntly, 3 Iredell's Law (N. C.) 418, 421 (1842). Malone Crim. Briefs, p. 345. Notwithstanding the early date of this statute (Northampton), we have no evidence that it was accepted as common law in our colonies. But whatever we may deem of this statute, the leading offence punishable by it, namely, riding or going about armed with dangerous or unusual weapons to the terror of the people, was always indictable under the common law of England, and it has become a part of the common law of our states. And this common-law offence has also been extended, regulated and confirmed by statutes in some of our states. But generally in the states which have legislated upon this subject, the simple carrying of the weapon, without reference king's pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor.(0) 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.(28) 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. (29) 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 ancient Gauls. (9) Such false and pretended prophecies were punished capitally by statute i 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)(30) If this challenge arises on account (0) Pott. Antiq. b. i. c. 26. (p) 2 Inst. 226. 3 Inst. 198. (q)"Habent legibus sanctum, si quis quid de republica a finilimis rumore aut fama acceperit, uti ad magistratum deferat neve cum alio communicet: quod sæpe homines teme rarios atque imperitos falsis rumoribus terreri, et ad facinus impelli, et de summis rebus consilium capere cognitum est." [They make it an inviolable rule, that if any one shall have received any intelligence in the neighborhood concerning to whether it is open or concealed, or to the terror of the people or not, is prohibited; or else the inhibition is limited to the 'secret' or 'concealed' carrying. The object sought is the protection of the community." Bishop, St. C. 2 ed. 783-786, pp. 464, 465. (28) "One of the old common-law offences, confirmed by statutes early enough in date to be common law with us, is termed the spreading of false news. It relates primarily, perhaps exclusively, to public affairs 'to make discord,'" etc. Bishop, Cr. L. 1, ? 476, pp. 291, 292. (29) "Whether . . . false and pretended prophecies and the like-were ever subjects of indictment here, as they were in England when our forefathers came to this country, we have probably no adjudications. Practically they have dropped silently out of the catalogue of crimes even on the other side of the Atlantic." ~Bishop, Cr. L. I, & 497, P. 303. (30) 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 misdemeanor 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 misdemeanor merely to endeavor 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. "It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely endeavor to provoke another to send a challenge, or to fight; as by dispersing letters, for that purpose, full of reflections, and insinuating to fight. And it will be no excuse for a party so offending. that he has received provocation; for as, if one person should kill another in a deliberate duel, under the provocation of charges against his character and conduct ever so grievous, it will be murder in him, and his second; the bare incitement to fight, though under such BOOK IV.-9. 1549 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) (31) 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; (f) (32) 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. (33) 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 *151] demand a compensation for himself, whatever 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 (s) 1 Hawk. P. C. 193. (t) Moor. 313. (u) 2 Brown, 115. 12 Rep. 35. Hob. 215. Poph. 139. 1 Hawk. P. C. 195. (v) Moor. 627. 5 Rep. 125. 11 Mod. 99. provocation, is in itself a very high misdemeanor, though no consequence ensue thereon against the peace." Russell on Crimes, I, *413. Id. Archbold, Crím. Pl. & Pr. 1, *835. Challenging is a subject of indictment on three grounds: (1) It tends to excite breaches of the public peace; (2) because it is an attempt to commit a crime; (3) it is a conspiracy. "On all three grounds parties who fight without the fatal result are punishable." Bishop, Cr. L. 2, 312, p. 179. "Sending a challenge, verbal or written, to fight a duel, is a disquiet-creating act in the nature of attempt; therefore, though no duel is fought, it is indictable at the common law." Bishop, 1,540, p. 332. State v. Perkins, 6 Blackf. (Ind.) 20, 21 (1841). (31) Where a writing in the form of a letter, addressed to the wife of another man, contained words importing that she had acted libidinously toward the writer, had invited him to an adulterous intercourse with her, and had sought opportunities to effect it; which writing was composed and sent to her, with intent to insult and abuse her, to debauch her affections and alienate them from her husband, to entice her to commit adultery, and to bring her into disgrace and contempt; it was held that such writing was libelous. "But the sending of such a letter, without other publication, is clearly an offence of a public nature, and punishable as such, as it tends to create ill-blood and cause a disturbance of the public peace." State v. Avery, 7 Conn. 266, 268 (1828). See Barb. Cr. L. 1, *231, p. 418 Root v. King, 7 Cowen (Ñ. Y.) 613, 620 (1827). Holt v. Parsons, 23 Tex. 9, 19 (1859). (32) See Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91, 104 (1815). (33) 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 repu tation 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. [Being rallied with cutting jests, which, when they contain much truth, leave a bitter remembrance behind.] Tac. Ann. 15, c. 68.-CHRISTIAN. The truth of a libel cannot be given in evidence in a criminal prosecution. State v. Lehre, 2 Treadway (S. C. Law) 809, 816 (1811). |