At all events,

be likened to an obstruction in a public way. the law on this subject is probably 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. And

2. Behavior of Guest. One's right to remain, or even to be originally received as guest, is conditioned on his good behavior; so that on a breach of this condition, the landlord may exclude him. 1

§ 532 a. Restated, the doctrine of this chapter is, that while one is not indictable who merely creates an inconvenience or even a danger to an individual, short of what will appear in the chapter after the next, he is so who does either to the public at large, if of the law's standard in magnitude. The law's idea of what is sufficient in form and degree expands with the public's acknowledged needs; for what would be deemed no inconvenience or danger in semi-barbarous times while the luxuries of later ages were unknown, and consequently would create no disquiet or conscious harm in the public, may be regarded as quite the reverse when art has smoothed the ways of travel and accelerated its motions, when refinement has taken the coarse and the gross from the public manners, and when all the machinery of ordinary life has been remodelled and made smooth in its multitudinous and complicated movements. Therefore modern statutes, while they have not abrogated the old law, have added a good deal to it; so that the laws of the present day under this head exhibit a growth greatly beyond what appeared in the days of the Henrys in England.

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. And see Reg. v. Ry.

mer, 2 Q. B. D. 136, 13 Cox C. C. 378. Plainly the setting up of a new inn in a locality where there are old ones is not indictable in our age and country; perhaps the same may be said of some other of the offences in this list by Hawkins, while others are in reason now what he states them to have been when he wrote.

1 Bishop Non-Con. Law, § 392, 1168, 1171; S. v. Steele, 106 N. C. 766, 19 Am. St. 573; Reg. v. Rymer, supra; C. v. Power, 7 Met. 596, 601.

327

CHAPTER XXXIX.

PROTECTION TO THE PUBLIC ORDER AND TRANQUILLITY.

§ 533. 1. The Prime Function of Government — is to preserve public order and keep the State tranquil. Thereupon the people have the opportunity to work out their own happiness and prosperity, which, of necessity, can proceed only from themselves, and can never be and never is a governmental gift. Therefore —

2. The Rule for this Chapter, — qualified as in the last,1 is that whatever, of sufficient magnitude for the law's notice, one wilfully does to the disturbance of the public order or tranquillity is indictable at the common law. For example,

§ 534. 1. Riots, Routs, and Unlawful Assemblies, — allied disturbances of the public tranquillity, are common-law crimes. They severally require, says Blackstone, "three persons, at least, to constitute them." And, to follow his particularization, —

2. An Unlawful Assembly - is the congregating of three or more persons to do some unlawful act; as, to pull down enclosures, to destroy a warren, or the game therein;" they parting without doing it or making any motion towards it."5 If, instead of thus separating without action, they accomplish some object to the terror of the people, their offence becomes a

riot.

3. A Rout, as defined by Blackstone, 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." But what is

1 Ante, § 530

* Ante. § 212 et seq.

34 Bl. Com. 146.

4 Vol. II. § 1256

And see S. Staleup, 1 Ire. 30, 35

℗ Hunt, 1 Russ. Crimes, 3d Eng. ed. 273:
Rex r. Blisset, 1 Mod. 13; Rex r. Birt, 5
Car & P. 154.

Vol. II. § 1143, 1257.
And see S.

Am. D. 732; Reg. r. Vincent. 9 Car. & P. 42 Am. D. 387.

Summer, 2 Speers, 599,

deemed a neater and more nicely accurate defining, wherein are brought to view the relations of these three offences to one another, is that a rout is an unlawful assembly which has performed some act toward the commission of a riot.1

4. A Riot, as defined by Blackstone, "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 actas, removing a nuisance -- in a violent or tumultuous manner. The present author, while not specially objecting to this definition, deems it more informing to say that a riot is such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is calculated to terrify others.3

992

5. Riotous Assemblies of Twelve. 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; but we have no reported attempts to give them a common-law force in this country.

§ 535. 1. Affray. 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. 5

2. Fighting in a Private Place is either no offence or an assault and battery, according to the circumstances.

S. v. Snow, 18 Me. 346, S. v. Straw, 33 Me. 554, Williams v. S. 9 Misso. 270; Scott v. U. S. Morris, 142; S. v. Brooks, 1 Hill, S. C. 361; Turpin v. S. 4 Blackf. 72; S. v. Calder, 2 McCord, 462, S. v. Jackson, 1 Speers, 13; S 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; C. v. Runnels, 10 Mass. 518, Am. D. 148; Pennsyl vania v. Craig, Addison, 190; Anony. mous, Mod. 43; Reg. v. Soley, 2 Salk.

594, 595; Reg. v. Ellis, Holt, 636; S. v. Russell, 45 N. H. 83.

8 Vol. II. § 1143.

4 4 Bl. Com. 142, where this legislation is stated and explained.

5 Vol. II. § 1; 4 Bl. Com. 145; S. v. Sumner, 5 Strob. 53, Simpson v. S. 5 Yerg 356, Curlin v. S. 4 Yerg. 143, O'Neill v. S. 16 Ala. 65; Cash v. S. 2 Tenn. 198; Klum v. S. 1 Blackf. 377; S. v. Heflin, 8 Humph. 84; S. v. Allen, 4 Hawks, 356; C. v. Perdue, 2 Va. Cas. 227; Duncan v. C. 6 Dana, 295; Hawkins v. S. 13 Ga. 322, 58 Am. D. 517.

6 Ante, § 260 (3) and note; Vol. II.

$35.

While one may

2 Forcizia Detainer Derending Property Inne maar wiʼn event ar nei in a subse

3. Farbie Entry Forcibie Trespass A man is indictable for four. nors, ass who by a string bani, a vikening dean, vista mincher's nedecana 79,880 S80 II cher tersena! * or sale or been, an though he is acting under a just flaim."

VOLIS 489 C. 14. Burt $33 1 Brav 119, S. 7. Am. D. 140; S. Don & I 4. Reg. Newlaris 4 1 1. Kex Nichols, 2 Keny. 32. S. Thever. 5 Ire. 452: Rex. S1. 5 Car & P20. Harlings Case, I Green 22. Sr. Morris, 3 Missa 127.

11 S. v. Bennett, 4 Der & Ba: 43: Rex * Marrow Cis. tamm, Faniw 174. S Pearson, 2N H. 350: P. Leonard, 11

But it is otherwise where one having lawful right immediately recaptures what has been wrongfully taken from him.1 When the property is personal, the demonstration to be a crime must be in the presence of the possessor, from whom it is taken away.2 In like manner,

§ 537. Analogous Vindications of Rights. The riotous entry into a house by the landlord, on the termination of a lease, or for the enforcement of a forfeiture; 3 the riotous pulling down of enclosures, even under a claim of right; the breaking, with wood and stones, of the windows of a dwelling-house in the night, to the terror of the occupants; the unlawful throwing down of the roof and chimney of a dwelling-house in the peaceable possession and actual occupancy of another, who is put in fear; the riotous breaking into another's dwelling-house, and making a great noise, whereby a woman in it miscarries, are severally indictable at the common law, as either forcible entries or other breaches of the peace. But

- Trespass

Terror.

7

§ 538. 1. Limits The mere trespass is not in these cases indictable; the act must go further.

Yet the

excited terror, which will complete it, may be wrought as well by a display of numbers as by other means. Therefore, for

2. Excessive Distress.

Though the taking of an excessive distress by a landlord is actionable, 10 it is not indictable; "for,"

Johns. 504; Beauchamp v. Morris, 4 Bibb, 312; Rex v. Storr, 3 Bur. 1698, 1699; Allen v. Tobias, 77 Ill. 169.

1 S. v. Elliot, 11 N. H. 540.

2 Vol. II. § 517; S. v. McDowell, 1 Hawks, 499; S. v. Watkins, 4 Humph. 256; S. v. Mills, 2 Dev. 420; S. v. Farnsworth, 10 Yerg. 261; Reg. v. Harris, 11 Mod. 113. And see Rex v. Gardiner, 1 Russ. Crimes, 3d Eng. ed. 53; S. v. Flowers, 1 Car. Law Repos. 97. See, as to real estate, S. v. Fort, 4 Dev. & Bat. 192.

And

8 Rex v. Stroude, 2 Show. 149. 4 Rex v. Wyvill, 7 Mod. 286. see S. v. Tolever, 5 Ire. 452; Reg. v. Harris, 11 Mod. 113.

5 S. v. Batchelder, 5 N. H. 549.

6 S. v. Wilson, 3 Misso. 125; S. v. Morris, 3 Misso. 127.

7 C. v. Taylor, 5 Binn. 277.

8 S. v. Phipps, 10 Ire. 17; Henderson v. C. 8 Grat. 708, 56 Am. D. 160; C. v.

Keeper of Prison, 1 Ashm. 140; Rex v. Bake, 3 Bur. 1731; Rex v. Smyth, 5 Car. & P. 201, 1 Moody & R. 155; S. v. Pollok, 4 Ire. 305, 42 Am. D. 140; S. v. Ray, 10 Ire. 39; S. v. Mills, 2 Dev. 420; S. v. Watkins, 4 Humph. 256; S. v. Armfield, 5 Ire. 207; Rex v. Gardiner, 1 Russ. Crimes, 3d Eng. ed. 53; 6 Mod. 175, note; 2 Mod. 306, note; Kilpatrick v. P. 5 Denio, 277; Rex v. Storr, 3 Bur. 1698; Rex v. Atkyns, 3 Bur. 1706; Rex v. Gillet, 3 Bur. 1707; S. v. Flowers, 1 Car. Law Repos. 97.

9 S. v. Simpson, 1 Dev. 504; Milner v. Maclean, 2 Car. & P. 17; C. v. Shattuck, 4 Cush. 141; Rex v. Jopson, cited 3 Bur. 1702. And see S. v. Wilson, 3 Misso. 125.

10 Lynne v. Moody, 2 Stra. 851; Tancred. Leyland, 16 Q. B. 669; Taylor v. Henniker, 12 A. & E. 488.