[149] 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 volume'. 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. 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 themselves or their ancestors, have been in the peaceable enjoyment of the lands and tenements, for three years immediately preceding ". 1 See Vol. III. pag. 174, &c. 1 Hawk. P.C. c. 64. § 2. the tenant's title was under a lease, now expired, is said to be a forcible Holding over by force, where detainer. (Cro. Jac. 199.) 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". 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 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 a. 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. (12) 12. BESIDES actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of [150] (12) It is not very important to mention, except for the character of the legislature in the time of Edward the Sixth; but I believe the statute which made the felony was the 33 Hen. 8. c. 14., which was altered by the temporary acts of 3 & 4 Ed. 6. c. 15. and 7E. 6. c. 11.; these having expired, the 5 Eliz. c. 15. was passed; but the punishments inflicted by the statutes of Edward and Elizabeth were the same. the same denomination. Therefore challenges to fight, either 13. Or 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. 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': and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace". For the same reason it is immaterial with respect to the essence of a libel, whether the matter of it be true or false; since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate it's guilt, and enhance it's punishment. In a civil action, we may remember, a libel must appear to be false, as well as scandalous "; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for [151] himself, whatever offence it may be against the public peace and therefore, upon a civil action, the truth of the accusation 62.215. Poph. 139. 1 Hawk. P.C. c. 73. § 11. 1 Hawk. P. C. c.63. § 3. 21. $ Ibid. c.73. § 1,2. Moor. 813. u 2 Brown. 151. 12 Rep.35. Hob. ▾ Moor.627. 5 Rep.125. 11 Mod. 99. w See Vol. III. pag.125. (13) It is indictable also to endeavour to provoke another to send a challenge, being an attempt to procure another to commit a misdemeanor. R. v. Phillips, 6 East, 464. : 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. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in it's discretion shall inflict; regarding the quantity of the offence, and the quality of the offender*. (14) 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. Under the emperor Valentinian 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. (14) By the 60 G.3. and 1G. 4. c. 8., for the more effectual prevention and punishment of blasphemous and seditious libels, it is enacted, that where the libel tends to bring into hatred and contempt the person of his majesty or the regent, or the government and constitution of the united kingdom as by law established, or either house of parliament, or to excite his majesty's subjects to attempt the alteration of any matter in church or state as by law established, otherwise than by lawful means, the judge on conviction, or the court on judgment by default, may order the seizure of all copies of the libel in the possession of the defendant, or of any person for his use, named in the order; the copies so seized are to be returned free of all expence, if the judgment be arrested or reversed, otherwise to be disposed of according to the direction of the court. And if any person having been legally convicted of the composition, publication, &c. of such a libel, shall be a second time convicted of the same offence, he may be banished from the united kingdom, and all other parts of his majesty's dominions, for such term of years as the court shall order. 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 not in freedom from censure for criminal matter when published. [152] 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, 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 It was ■ The art of printing, soon after it's (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. & M. c. 24., but though frequent attempts were made by the government to revive it, in the subsequent part of the reign, (Com. Journ. 11 Feb. 1694, 26 Nov. 1695, 22 Oct. 1696, 9 Feb. 1697, 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. (15) (15) It was in consequence of the ordinance passed in 1643, that Milton published his Areopagitica, or speech for the liberty of unlicensed printing, one of the most moderate yet most eloquent and able of his political works, and one of the most splendid compositions in the language. |