the whole or any part of any valuable security, or to write, impress, or affix his name, or the name of any other person, or of any company, firm, or copartnership, or the seal of any body corporate, company, or society, upon or to any paper or parchment, in order that the same may be afterwards made or converted into, or used or dealt with as a valuable security (u). It is immaterial whether the menaces or threats mentioned in the sections of the Larceny Act above cited be of violence, injury, or accusation to be caused or made by the offender or by any other person (x). The following offences are misdemeanors: nious. IV. Affrays. IV. An affray (from affrayer, to frighten) is the fighting of two or more Breaches of the persons in some public place, to the terror of her majesty's subpeace not felo- jects: for, if the fighting be in private, it is no affray, but an assault (y). (673) An affray may be suppressed by any private [*169] person present, who is * justifiable in endeavouring to part the combatants, whatever consequence may ensue (z). 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 (a). The punishment of a common affray 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 the officers of justice are disturbed in the due execution of their office: or where a respect to the particular locality ought to restrain and regulate men's behaviour, more than in common places; as in the king's court, and the like. And upon the same account also 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 5 & 6 Edw. 6, c. 4, s. 1, 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 ecclesia; and, if a clerk in orders, from the ministration of his office during pleasure. Also, by section 2 of the same statute, if any person in such church or churchyard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto. This enactment, (u) 24 & 25 Vict. c. 96, s. 48. Punishment: penal servitude for life, or for any term not less than five years,-or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (x) 24 & 25 Vict. c. 96, s. 49. (673) See Sampson v. State, 5 Yerg. (Tenn.) 356; Duncan v. Com., 6 Dana (Ky.), 295. The fighting must be alleged in the indictment, and proved on the trial to have been in some public place. See State v. Sumner, 5 Strobh. (S. C.) 53; State v. Heflin, 8 Humph. (Tenn.) 84. Mere words will not constitute an affray. Hawkins v. State, 13 Ga. 322; O'Neill v. State, 16 Ala. 65; and it is held that the fighting must be by mutual consent. Klum v. State, 1 Blackf. (Ind.) 377; Duncan v. Com., 6 Dana (Ky.), 295. But see Cash v. State, Overt. (Tenn.) 198. He who aids, assists, and abets an affray is guilty as principal. Hawkins v. State, 13 Ga. however, "so far as it relates to persons not in orders," has been repealed by the 23 & 24 Vict. c. 32, s. 5 (b). * Two persons may be guilty of an affray: but, [*170] V. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble V. Riots and unlawful assemblies. 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 (c). 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 (d). A riot is where three or more do an unlawful act of violence, either with or without a common cause or quarrel (e): 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, tumultuous, and unjustifiable manner (f). (674) The punishment of unlawful assemblies, if to the number of twelve, we have just now seen, may extend to penal servitude (g), but from the number of three to eleven, is by fine and imprisonment, with or without hard labour (h). The same is the case in riots and routs by the common law (i). And by the statute 13 Hen. 4, 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. Under this statute it has been held that any battery, wounding, or killing of the rioters, which may happen in suppressing the riot, is justifi[*171] able (k). 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 queen's * (b) The 3rd sect. of the above-mentioned statute of Edw. 6, was repealed by the 9 Geo. 4, c. 31. (c) 3 Inst. 176. (d) Bro. Abr. tit. Riot, 4, 5. (e) 3 Inst. 176. (f)2 Hawk. P. C. c. 65, ss. 2, 3. 7. See Clifford v. Brandon, 2 Camp. 358. (g) Ante, p. 164. (h) 3 Geo. 4, c. 114. (i) 1 Hawk. P. C. 159. (k) 1 Hale, P. C. 495; 1 Hawk. P. C. 161. (674) The concurrence of three or more persons is essential to the commission of a riot. Com. v. Edwards, 1 Ashm. (Penn.) 46; State v. Alison, 3 Yerg. (Tenn.) 428; Turpin v. State, 4 Blackf. (Ind.) 72. See State v. Straw, 33 Me. 554; Scott v. United States, 1 Morris, 142. And there must be an unlawful assembly. State v. Stalcup, 1 Ired. (N. C.) 30. But a lawful assembly can be rendered unlawful, by the concerted determination of the individuals; and the assembly may then amount to a riot. State v. Snow, 18 Me. 346; State v. Cole, 2 McCord (S. C.), 117. The assembly must be such as to inspire people with terror. See Douglass v. State, 6 Yerg. (Tenn.) 525; Penns v. Cribs, Add. (Penn.) 277; State v. Brazil, Rice (S. C.), 258; but it would seem to be enough if a single family or person be terrified. State v. Alexander, 7 Rich. (S. C.) 5; State v. Jackson, 1 Spear (S. C.), 13. A mere coming together to commit a riot is indictable as an unlawful assembly. 2 Bish. Cr. Law, § 1151; 4 Penn. Law Jour. 31. A rout is an attempt at riot made by an unlawful assembly, and it requires, at least, three persons to commit the offense. See State v. Sumner, 2 Speer (S. C.), 599. forces, if sent to keep the peace, may amount to overt acts of treason, by levying war against the sovereign. VI. Nearly related to the foregoing head of riots is the offence of tumultuous petitioning; which was carried to an enormous height in the times preceding VI. Tumultuous the grand rebellion. Wherefore, by statute 13 Car. 2, st. 1, c. 5, petitioning. it is enacted, that not more than twenty names shall be signed to any petition to the crown or either house of parliament, for any alteration of matters established by law in church or state; unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assizes or quarter-sessions; and, in London, by the lord mayor, aldermen, and common council (), 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 1007. and three months' imprisonment (m). Also by statute 57 Geo. 3, c. 19, s. 23, no meeting of more than fifty persons within the distance of one mile from Westminster Hall, for the purpose or on the pretext of petitioning the Crown or parliament, during the sitting of parliament, or of the courts at Westminster, is legal. [*172] VII. Forcible entry, &c. VII. A seventh 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 in some special cases. But this being found prejudicial to the public peace, it was thought necessary by several statutes to restrain persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim (n). 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. A forcible entry and detainer is indictable at common law (0). By the statute 5 Ric. 2, st. 1, c. 8, all forcible entries are punished with imprisonment and ransom at the king's will (p). And by the several statutes, 15 Ric. 2, c. 2, 8 Hen. 6, c. 9, 31 Eliz. c. 11, and 21 Jac. 1, 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 or their own view, as in case of riots; and upon such conviction may commit the offender to gaol, till he makes fines and ransom to the crown. 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 (1) This may be one reason why the corporation of London has, since the restoration, usually taken the lead in petitions to parliament for the alteration of any established law. (m) The bill of rights does not virtually repeal this provision. R. v. Lord George Gordon, Dougl. 592. (n) 1 Hawk. P. C. 141. (0) R. v. Wilson, 8 T. R. 357. Per Parke, B., Harvey v. Brydges, 14 M. & W. 442; R. v. Smyth, 5 C. & P. 201. (p) And a small fine may be imposed. R. v. Lloyd, Cald. 416. [ * 173 ] the same may be done by indictment at the general* sessions (q). 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 (r). (675) VIII. Besides actual breaches of the peace, anything that tends to provoke or excite others to break it, is an offence. Therefore a challenge to fight, either by word or letter, or to be the bearer of such challenge, is punishable by fine and imprisonment, according to the circumstances of the offence (8). (676) VIII. Challenge to fight. IX. A libel, libellus famosus, taken in its largest sense, signifies any writing, picture, or the like, of an immoral or legal tendency; but, in the sense under which we are now to consider it, is a malicious defamation of any person, made public by printing, writing, sign, or picture, in order to provoke him to wrath, or expose him to public hatred, contempt and ridicule (t). (677) The direct tendency of a libel is to induce a breach of the IX. Libel. (q) Where the indictment was framed on the stat. 8 Hen. 6, c. 9, and the judge at the assizes, in his discretion, refused to award restitution, the Court of Queen's Bench would not review his decision. Reg. v. Harland, 8 Ad. & E. 826. (r) 8 Hen. 8, c. 9, s. 7. (8) 1 Hawk. P. C. 135, 138; R. v. Rice, 3 East, 581. This is an offence, though the provocation to fight do not succeed, and it is a misdemeanor merely to endeavor to pro- (675) Forcible entry and detainer are common-law misdemeanors in distinction from felony, and are indictable offenses without regard to any statute. See Henderson's Case, 8 Gratt. (Va.) 708; Butts v. Voorhees, 1 Green (N. J.), 13; Com. v. Shattuck, 4 Cush. (Mass.) 141; State v. Wilson, 3 Mo. 125; State v. Morris, id. 127; State v. Speirin, 1 Brev. (S. C.) 119. In most of the States the injured party may now seek his remedy by statutory proceedings in a civil tribunal. (676) The offense is complete when the invitation to fight is in any way delivered (State v. Taylor, 1 Tread. [S. C.] 107); and the words of the challenge are immaterial. Gordon v. State, 4 Mo. 375; Ivey v. The State, 12 Ala. 276; Com. v. Pope, 3 Dana (Ky.), 418. But see Angler v. People, 34 Ill. 486. So the offense is indictable although the contemplated duel is to take place in another country or State. Ivey v. State, 12 Ala. 276; State v. Farrier, 1 Hawks. (N. C.) 487; State v. Taylor, 3 Brev. (S. C.) 243. And even though the challenge is to fight with weapons not deadly, the offense is indictable. Id.; Com. v. Whitehead, 2 Boston Law Rep. 148. (677) Libel is an indictable offense at common law in the United States, as well as in England. Com. v. Chapman, 13 Metc. (Mass.) 68; Com. v. Holmes, 17 Mass. 336; State v. Burnham, 9 N. H. 34. For definitions of the offense, see Com. v. Clap, 4 Mass. 163, 168; State v. Farley, 4 McCord (S. C.), 317; Steele v. Southwick, 9 Johns. 214; State v. Jeandell, 5 Harr. (Del.) 475. The mere attempt to publish a libel is an indictable offense. Thus the transmission of a sealed letter containing libelous matter is indictable. Hodges v. The State, 5 Humph. (Tenn.) 112. And the full criminal offense is committed, though the libel reaches the ears of none but the person to whom it is sent. State v. Avery, 7 Conn. 266. The imputation of a crime would seem sufficient to render a publication libelous in every case (Walker v. Winn, 8 Mass. 248; State v. White, 7 Ired. [N. C.] 180; Hillhouse v. Dunning, 6 Conn. 139); but a publication may be libelous without any such imputation. Ib.; Steele v. Southwick, 9 Johns. 214; State v. Henderson, 1 Rich. (S. C.) 179; Clark v. Binney, 2 Pick. (Mass.) 113. public peace, by stirring up the object of it to revenge, perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law (u): and therefore the sending an abusive private letter to a man is as mucha libel as if it were openly printed, for it equally tends to a [*174 ] breach of the peace (x). Moreover, the statute 6 & 7 Vict. c. 96, s. 3, enacts, that if any person shall publish or threaten to publish a libel upon any other person, or shall, directly or indirectly, threaten to print or publish, or propose to abstain from printing or publishing, or offer to prevent the printing or publishing of, any matter or thing touching any other person, with intent to extort any money or security, or any valuable thing, from such or any other person, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, the offender on conviction shall be liable to imprisonment, with or without hard labour, for any term not exceeding three years. It is expressly provided that this enactment shall not affect the law relating to the sending or delivery of threatening letters or writings (y). At common law it was immaterial with respect to the essence of a libel, whether the matter of it were true or false: the provocation, not the falsity, being criminally punishable, by reason of its tendency to disturb the public peace. But now, by 8. 4 of the statute just cited, the falsehood of the libel is made an essential element in the guilt of the defendant: it being enacted thereby, that if any person shall maliciously publish any defamatory libel, "knowing the same to be false," he shall be liable, on conviction, to imprisonment for any term not exceeding two years, and to pay such fine as the court shall award. The 6th section of the same statute further enacts, that on the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as is thereinafter mentioned, "the truth of the matters charged may be inquired into;" but shall not amount to a defence, unless it was for the public benefit*that they should be published: and that, [ *175] to entitle the defendant to give evidence of their truth, it shall be necessary for him, in pleading, to allege the truth of the matters charged, in the manner required in pleading a justification to an action for defamation (z), and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit; to which plea the prosecutor may reply generally, denying the whole: and if after such plea the defendant shall be convicted, the court may consider, in pronouncing sentence, whether his guilt is aggravated or mitigated by the plea, and the evidence given to prove or disprove it. Further it is provided, that the truth of the matters charged in the libel shall in no case be inquired into without such plea of justification. The defendant may also plead not guilty, and every defence which it is by law competent to him to make under that plea, is reserved to him. (678) (u) As to proof of publication, see R. v. Burdett, 4 B. & Ald. 95; 3 Ib. 717; Lambe's Case, Moore, 813. (x) Edwards v. Wooton, 12 Rep. 35; Hick's Case, Hob. 215; 1 Hawk. P. C. 195. (y) Ante, p. 166. (2) Ante, vol. iii. (678) The general rule at the common law is that the truth cannot be given in evidence as a defense in a criminal prosecution for a libel. State v. Lehre, 3 Brev. (S. C.) 446; State v. Burnham, 9 N. H. 34; Com. v. Clap, 4 Mass. 163; Com. v. Sanderson, 3 Penn. Law Jour. 269. See People v. Croswell, 3 Johns. Cas. 337. In many of the States, however, this rule |