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fore obstructions of highways, of public squares,2 harbors,3 navigable rivers, 4 and the like; injuries done to such ways and places;5 neglect or refusal, by those whose duty it is, to keep them in repair;& the carrying on, in populous localities or near a highway, of trades which render the ait either unwholesome, or disagreeable to the sense;' making great noises, to the disquiet of the neighborhood; 8 keeping large quan
· Commonwealth v. Miliman, 13 S. & R. 403 ; Rex v. Scott, 2 Gale & D. 729; Rex v. Cross, 3 Camp. 224 ; Rex r. Jones, 3 Camp. 230; Rex v. Morris, 1 B. & Ad. 441 ; People v. Cunningham, 1 Denio, 524 ; Reg. v. Scott, 3 Q. B. 543 ; Rex v. Russell, 6 East, 427; The State v. Duncan, 1 McCord;
The State v. Spainhour, 2 Dev. & Bat. 547; Rex v. Moore, 3 B. & Ad. 184; Reg. v. Watts, 1 Salk. 357; Justice v. Commonwealth, 2 Va. Cas. 171 ; Commonwealth v. Wilkinson, 16 Pick. 175; The State v. Pollok, 4 Ired. 303; The State v. unter, 5 Ired. 369; Commonwealth v. Gowen, 7 Mass.
Commonwealth v. Wilkinson, 16 Pick. 175; Rex v. Carlile, 6 Car. & P. 636; Rex v. W. R. of Yorkshire, 2 East, 342; Commonwealth v. King, 13 Met. 115; Reading v. Commonwealth, 1 Jones, Pa. 196 ; Rex v. Sarmon, 1 Bur. 516 ; Rex v. Webb, 1 Ld. Raym. 737; Rex v. Dobbins, 11 Mod. 317; Reg. v. Derbyshire, 2 Q. B. 745 ; The State v. Knapp, 6 Conn. 415 ; Reg. v. Sheffield Gas Co. 22 Eng. L. & Eq. 200.
· The State v. Commissioners, Riley, 146; Rung v. Shoneberger, 2 Watts, 23 ; The State v. Commissioners, 3 Hill, S. C. 149; Commonwealth v. Rush, 2 Harris, Pa. 186.
* Rex v. Tindall, 1 Nev. & P. 719, 6 A. & E. 143. And see Commonwealth v. Alger, 7 Cush. 53.
* Commonwealth v. Church, 1 Barr, 105; The State v. Thompson, 2 Strob. 12; Rex v. Trafford, 1 B. & Ad. 874, 887; Rex v. Watts, 2 Esp. 675; Renwick v. Morris, 7 Hill, N. Y. 575; Rex v. Russell, 6 B. & C. 566 ; Cummins v. Spruance, 4 Harring. Del. 315.
6 Rex v. Edgerly, March, 131; Reg. v. Leech, 6 Mod. 145; Rex v. Stanton, 2 Show. 30; Commonwealth v. Eckert, 2 Browne, 249.
• Rex v. Hendon, 4 B. & Ad. 628; Rex v. Stoughton, 2 Saund. 157; Reg. v. Wilts, Holt, 339; Rex v. Dixon, 12 Mod. 198; Waterford and Whitehall Turnpike v. People, 9 Barb. 161; Payne v. Partridge, 1 Show: 256; The State v. Murfreesboro', 11 Humph. 217.
? Rex v. White, 1 Bur. 333 ; Commonwealth v. Brown, 18 Met 365; Rex v. Watts, Moody & M. 281, 4 Car. & P. 486; Rex v. Neville, Peake, 91; Ray v. Lynes, 10 Ala. 63; The State v. Hart, 34 Maine, 36.
8 Rex v. Smith, 2 Stra. 704; The State v. Haines, 30 Maine, 65. And see Commonwealth v. Smith, 6 Cush. 80.
tities of gunpowder in populous places, to the danger of the public safety; 1 and other acts of a similar tendency;2 being, with some which were mentioned under previous beads,3 termed in legal language nuisances, are offences indictable at the common law.
$ 393. Since also inns 4 are for the public convenience, and the keepers of them have certain rights and privileges given in return for the public good they do, — "an indictment,” says Coleridge, J., “lies against an inkeeper who refuses to receive a guest, he having at the time room in his house, and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that tender;" 5 though, from a later case, it would appear that the tender must at all events be made. So if, having received the guest, he refuses to find for the guest food and lodging, he is indictable. But, to produce these consequences, the person applying as guest must be a traveller. Such is the clear English doctrine; and it is affirmed in a dictum of the North Carolina court.9 The learned Eng. lish judge, above named, seemed to put the liability on the ground that inkeepers are a sort of public servants;" 10 and in this view we should perhaps have discussed the topic under a previous sub-title.11 We may consider, as another view,
- Anonymous, 12 Mod. 342; Cheatham v. Shearon, 1 Swan, Tenn. 213; Rex v. Taylor, 2 Stra. 1167; People v. Sands, 1 Johns. 78. And see Williams v. Augusta, 4 Ga. 509.
* Rex v. Wharton, 12 Mod. 510 ; Reg. v. Wigg, 2 Salk. 460, 2 Ld. Raym. 1163; Commonwealth v. Webb, 6 Rand. 726 ; Commonwealth v. Chapin, 5 Pick. 199.
3 Ante, $ 373, 379, 381.
1 Hawk. P. C. Curw. Ed. p. 714, § 2.
Coleridge, J., in Rex v. Ivens, 7 Car. & P. 213, 219. 1 Ante, $ 360 et seq.
that the inkeeper who allures a traveller to his house, by holding himself out as ready to entertain him, and then refuses, places himself toward the traveller on unfair ground; in which aspect, the matter belongs in our next chapter. But unless we call in the aid of principles like these, we do not readily find a foundation for the indictment, where the refusal is not
a general; because the traveller is merely an individual, and the public sustains no separate injury. The law on this subject is probably, however, as above stated; because no sufficient reason appears for discarding the old doctrine. Yet it has little practical effect at this time, being rather a relic of the past than a living thing of the present.
VIII. Protection to the Public Order and Tranquillity.
$ 394. There is little need to introduce our present subtitle with the general statement, that whatever, of sufficient magnitude for the law's notice, any person wilfully does to the disturbance of the public order or tranquillity, is indictable at the common law. The public order is the order of God among men, established for the regulation of the general society. The public tranquillity is the repose of the community, coming from obedience to the laws of public order.
· And see also ante, $ 325, 326.
2 Concerning innkeepers, Hawkins says: “It seems to be agreed, that the keeper of an inn may, by the common law, be indicted and fined, as being guilty of a public nuisance, if he usually harbor thieves, or persons of scandalous reputation, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where there is no manner of need of one, to the hinderance of other ancient and well governed inns, or keep it in a place in respect of its situation wholly unfit for such a purpose. And it seems also to be clear, that if one who keeps a common inn refuse either to receive a traveller as a guest into his house, or to find him victuals, or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action on the case at the suit of the party grieved, but may also be indicted and fined at the suit of the king" 1 Hawk. P. C. Curw. Ed. p. 714, § 1, 2. 8 Ante, S 320 et seq.
And whenever there is a disturbance produced in either of these interests, the community suffers. The methods of disturbing are many and diverse; let us see what are some which the courts have already recognized as common law crimes.
$ 395. Riots, routs, and unlawful assemblies may be men. tioned as illustrations of these public disturbances. They severally require, says Blackstone, “ 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 inclosures, to destroy a warren, or the game therein; and part without doing it, or making any motion towards it.1 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. A riot is where three or more actually do an unlawful act of violence, either with or without common cause or quarrel : 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 or tumultuous manner." 3 There are some English statutes, ancient as well as comparatively modern, making the riotous
* And see The State v. Stalcup, 1 Ired. 30; Reg. v. Vincent, 9 Car. & P." 91 ; Reg. v. Neale, 9 Car. & P. 431 ; Rex v. Hunt, 1 Russ. Crimes, Greå. Ed. 273; Rex v. Blisset, 1 Mod. 13; Rex v. Birt, 5 Car. & P. 154; Vol. II. § 1039, 1040,
? And see The State v. Sumner, 2 Speers, 599; Vol. II. § 981.
3 4 Bl. Com. 146. And see, as to riots, The State v. Connolly, 3 Rich. 337; The State v. Snow, 18 Maine, 346; The State v. Straw, 33 Maine, 554; Williams v. The State, 9 Misso. 268; Scott v. United States, 1 Morris, 142; The State v. Brooks, 1 Hill, S. C. 361; Turpin v. The State, 4 Blackf. 72; The State v. Calder, 2 McCord, 462; The State v. Jackson, 1 Speers, 13; The State v. Cole, 2 McCord, 117; Pennsylvania v. Cribs, Addison, 277; Pennsylvania v. Morrison, Addison, 274; Rex v. Scott, 3 Bur. 1262, 1 W. Bl. 350 ; Reg. v. Vincent, 9 Car. & P. 91; Rex v. Sudbury, 12 Mod. 262; Rex v. Hunt, 1 Keny. 108; Commonwealth v. Runnels, 10 Mass. 518; Pennsylvania v. Craig, Addison, 190; Anonymous, 6 Mod. 43; Reg. v. Solely, 2 Salk. 594, 595; Reg. v. Ellis, Holt, 636 ; Vol. II. § 954 et seq.
assembling of twelve or more persons, under certain circum. stances and for certain specific purposes, a heavier offence;1 but we have no reported instances of attempts to give them a common law force in this country,
$ 396. Of a similar nature to riot and the like 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.2 Fighting in a private place is either no offence 3 or an assault and battery, according to the circumstances. Of course a public prize fight is indictable.4
§ 397. But indictable breaches of the public peace assume many other forms. Thus, while all reasonable and necessary force may lawfully be used by one to defend his real or personal estate, of which he is in the actual possession, against another who comes to dispossess him without right;6 yet, if
14 Bl. Com. 142.
* 4 Bl. Com. 145; The State v. Sumner, 5 Strob. 53; Simpson v. The State, 5 Yerg. 356; Curlin v. The State, 4 Yerg. 143; O'Neill v. The State, 16 Ala. 65; Cash v. The State, 2 Overt. 198; Klum v. The State, 1 Blackf. 377; The State v. Heflin, 8 Humph. 84; The State v. Allen, 4 Hawks, 356 ; Commonwealth v. Perdue, 2 Va. Cas. 227; Duncan v. Commonwealth, 6 Dana, 295; Hawkins v. The State, 13 Ga. 322. 3 Ante, $ 343 and note.
Reg. v. Brown, Car. & M. 314. 6 Weaver v. Bush, 8 T. R. 78; Harrington v. People, 6 Barb. 607; Commonwealth v. Kennard, 8 Pick. 133; The State v. Godsey, 13 Ired. 348; The State v. Johnson, 12 Ala. 840; The State v. Morgan, 3 Ired. 186; Monroe v. The State, 5 Ga. 85; Rex v. Ford, J. Kely. 51; McDaniel v. The State, 8 Sm. & M. 401; The State v. Zellers, 2 Halst. 220; The State v. Smith, 3 Dev. & Bat. 117; Moore v. Hussey, Hob. 93, 96 ; Semayne v. Gresham, 5 Co. 91 a; Hollowaye's case, Palmer, 545, Cro. Car. 131; Commonwealth v. Drew, 4 Mass. 391; Rex v. Longden, Russ. & Ry. 228; United States v. Wiltberger, 3 Wash. C. C. 515; The State v. Briggs, 3 Ired. 357; The State v. Clements, 32 Maine, 279; The State v. Lazarus, 1 Const. N. S. 34 ; 1 East P. C. 402. And see, for a full discussion of the right to defend one's self or property, Vol. II. $ 543-583.