a man undertakes to retain what he knows 1 to be a wrongful possession, by a force or by numbers reasonably exciting terror, he is indictable. This offence is called in law a forcible detainer.2 So a man is indictable for a forcible entry or trespass, who, by strong hand, awakening fear, attempts to wrest from another's peaceable possession either personal3 or real property, even though he is proceeding under a just claim." But this doctrine does not apply where a person, having lawful right, immediately recaptures what has been wrongfully taken from him. When the property is personal, the demonstration, say the courts, must be in the presence of an actual possessor, from whom it is taken away.7

§ 398. In like manner, the riotous entry into a house by the landlord, on the termination of a lease, or for the enforce

1 Ante, § 242.

* The State v. Godsey, 13 lred. 348; Commonwealth v. Rogers, 1 S. & R. 124; Commonwealth v. Lakeman, 4 Cush. 597; Milner v. Maclean, 2 Car. & P. 17.

The State v. Armfield, 5 Ired. 207; The State v. McDowell, 1 Hawks, 449; The State v. Watkins, 4 Humph. 256; The State v. Bennett, 4 Dev. & Bat. 43; The State v. Mills, 2 Dev. 420; The State v. Ray, 10 Ired. 39; The State v. Phipps, 10 Ired. 17; The State v. Flowers, 1 Car. Law Repos. 97.

• Commonwealth v. Shattuck, 4 Cush. 141; Rust v. The State, 3 Brev. 413; The State v. Speirin, 1 Brev. 119; The State v. Pollok, 4 Ired. 305; The State v. Pridgen, 8 Ired. 84; Reg. v. Newlands, 4 Jur. 322; Rex v. Nicholls, 2 Keny. 512; The State v. Tolever, 5 Ired. 452; Rex v. Smyth, 5 Car. & P. 201; Harding's case, 1 Greenl. 22; The State v. Morris, 3 Misso. 127.

The State v. Bennett, 4 Dev. & Bat. 43; Rex v. Marrow, Cas. temp. Hardw. 164; The State v. Pearson, 2 N. H. 550; People v. Leonard, 11 Johns. 504; Beauchamp v. Morris, 4 Bibb, 312; Rex v. Storr, 3 Bur. 1698,

1699.

The State v. Elliot, 11 N. H. 540.

The State v. McDowell, 1 Hawks, 449; The State v. Watkins, 4 Humph. 256; The State v. Mills, 2 Dev. 420; The State v. Farnsworth, 10 Yerg. 261; Reg. v. Harris, 11 Mod. 113. And see Rex v. Gardiner, 1 Russ. Crimes, Grea. Ed. 53; The State v. Flowers, 1 Car. Law Repos. 97. See, as to real estate, The State v. Fort, 4 Dev. & Bat. 192.

ment of a forfeiture;1 the riotous pulling down of inclosures, 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; 3 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; 4. the riotous breaking into another's dwelling-house, and making a great noise, whereby a woman in the house miscarries; 5 are severally indictable at the common law, as either forcible entries, or other breaches of the peace.

§ 399. In these cases, the trespass is not alone indictable, for the thing done must go further; while the terror may be excited as well by numbers as by other means. Therefore a landlord, for example, cannot be held criminally for taking an excessive distress; neither can any individual, for being merely in the frequent practice of going to the house of another, and so in words abusing his family as to make their

1 Rex v. Stroude, 2 Show. 150.

2 Rex v. Wyvill, 7 Mod, 286. And see The State v. Tolever, 5 Ired. 452; Reg. v. Harris, 11 Mod. 113.

The State v. Batchelder, 5 N. H. 549.

The State v. Wilson, 3 Misso. 125; The State v. Morris, 3 Misso. 127.

5 Commonwealth v. Taylor, 5 Binn. 277.

The State v. Phipps, 10 Ired. 17; Henderson v. Commonwealth, 8 Grat. 708; Commonwealth v. Keeper of Prison, 1 Ashm. 140; Rex v. Bake, 3 Bur. 1731; Rex v. Smyth, 5 Car. & P. 201, 1 Moody & R. 155; The State v. Pollok, 4 Ired. 305; The State v. Ray, 10 Ired. 39; The State v. Mills, 2. Dev. 420; The State v. Watkins, 4 Humph. 256; The State v. Armfield, 5 Ired. 207; Rex v. Gardiner, 1 Russ. Crimes, Grea. Ed. 53; 6 Mod. 175, note; 2 Mod. 306, note; Kilpatrick v. People, 5 Denio, 277; Rex v. Storr, 3 Bur. 1698; Rex v. Atkins, 3 Bur. 1706; Rex v. Gillet, 3 Bur. 1707; The State, v. Flowers, 1 Car. Law Repos. 97.

The State v. Fisher, 1 Dev. 504; Milner v. Maclean, 2 Car. & P. 17; Commonwealth v. Shattuck, 4 Cush. 141; Rex v. Jopson, cited 3 Bur. 1702. And see The State v. Wilson, 3 Misso. 125.

Rex v. Lesingham, T. Raym. 205, 1 Mod. 71.

lives uncomfortable; the injury being only of a civil nature.1

§ 400. But we should mistake to suppose, that the peace must actually be broken, to lay the foundation for a criminal proceeding. If what is done is unjustifiable and unlawful, tending also with sufficient directness to break the peace, no more is required. Thus sending a challenge, verbal or written, to fight a duel;2 going about armed, with unusual and dangerous weapons, to the terror of the people;3 riotously driving in a carriage through the streets of a populous city, so as to hazard the safety of the inhabitants; spreading false news,5 publishing libels, even in some extreme cases uttering words, calculated to stir up resentments and quarrels; eavesdropping; being a common scold;9 and the like; are cognizable criminally by the common law. For we have seen, that every man is presumed to intend the natural and even probable consequences of his act; and we have partly seen,11 what will be more fully considered further on,12 that

11

1 Commonwealth v. Edwards, 1 Ashm. 46. See The State v. Caldwell, 2 Jones, N. C. 468; The State v. Bordeaux, 2 Jones, N. C. 241.

24 Bl. Com. 150; Rex v. Newdigate, Comb. 10; Reg. v. Langley, 2 Ld.* Raym. 1029, 1031; Smith v. The State, 1 Stew. 506.

The State v. Huntly, 3 Ired. 418; Knight, Sir John's, case, 3 Mod. 117, Comb. 38.

United States v. Hart, Pet. C. C. 390.

54 Bl. Com. 149.

Commonwealth v. Clap, 4 Mass. 163, 168, 169; Commonwealth v. Chapman, 13 Met. 68; Rex v. Topham, 4 T. R. 126; Reg. v. Collins, 9 Car. & P. 456; Rex v. Kinnersley, 1 W. BL. 294; Reg. r. Lovett, 9 Car. & P. 426; Rex v. Pain, Comb. 358; The State v. Burnham, 9 N. II. 34.

7 Reg. v. Taylor, 2 Ld. Raym. 879; Ex parte Marlborough, 1 New Sess. Cas. 195, 13 Law J. N. s. M. C. 105, 8 Jur. 664; ante, § 367.

The State v. Williams, 2 Overt. 108; 4 Bl. Com. 168.

4 Bl. Com. 168; Reg. v. Foxby, 6 Mod. 11; James v. Commonwealth, 12 S. & R. 220; United States v. Royall, 3 Cranch C. C. 620.

10 Ante, § 248.

11 Ante, § 315.

19 Post, ATTEMPT.

usually if one attempts unsuccessfully to do a criminal thing, intending to do it, and performing an act toward the doing, he is indictable therefor.

§ 401. We have also that triangle of analogous offences, barratry, maintenance, and champerty; which are rather actual than attempted disturbances of the repose of the community. The gist of them severally is, that they embroil men in lawsuits and other like quarrels. Blackstone defines barratry to be, the "frequently exciting and stirring up of suits and quarrels between his majesty's subjects, either at law or otherwise;"1 maintenance, "an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it;" 2 champerty, "a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law, whereupon the champetor is to carry on the party's suit at his own expense." The sale of real estate, of which another holds an adverse seizin, is usually a species of champerty. These matters will be considered

more at large in our second volume.

3

1 4 Bl. Com. 134; Case of Barratry, 8 Co. 36 b, 37b; Rex v. Mod. 97; The State v. Chitty, 1 Bailey, 379; Commonwealth v. McCullock, 15 Mass. 227.

* 4 Bl. Com. 134; Brown v. Beauchamp, 5 T. B. Monr. 413.

4 Bl. Com. 135; Thurston v. Percival, 1 Pick. 415; Rust v. Larue, 4 Litt. 411, 417; Douglass v. Wood, 1 Swan, Tenn. 393; Knight v. Sawin, 6 Greenl. 361; Byrd v. Odem, 9 Ala. 755; Key v. Vattier, 1 Ohio, 132; McMullen v. Guest, 6 Texas, 275; Lathrop v. Amherst Bank, 9 Met. 489; Holloway v. Lowe, 7 Port. 488.

* Cockell v. Taylor, 15 Eng. L. & Eq. 101;, Hoyt v. Thompson, 1 Seld. 320; Van Dyck v. Van Beuren, 1 Johns. 345, 363; Whitesides v. Martin, 7 Yerg. 384; Williams v. Hogan, Meigs, 187; Wellman v. Hickson, 1 Cart. Ind. 581; Michael v. Nutting, 1 Cart. Ind. 481; Truax v. Thorn, 2 Barb. 156; Tuttle v. Jackson, 6 Wend. 213, 224; Jackson v. Anderson, 4 Wend. 474. Whether Stat. 32 Hen. 8, c. 9, is common law in this country, see Brinley v. Whiting, 5 Pick. 348, 353; Hall v. Ashby, 9 Ohio, 96; People v. Sergeant, 8 Cow. 139; Sessions v. Reynolds, 7 Sm. & M. 130.

3

§ 402. The only remaining breach of public order and tranquillity, to be here pointed out, is the disturbance of public meetings. When people rightfully assemble for worship,1 or assemble in their town meetings, and the like; and probably in all cases where they come together, in an orderly way, for a lawful object; those who wrongfully interrupt them are indictable at the common law. It has been said, that, in England, the statutes which were there passed & were necessary to protect dissenters, on account of an assembling by them not being lawful; while it is equally admitted, that in this country, where all forms of worship are favored, they are not required. Opposed to this view of the English law is the strong dictum of Lord Mansfield, who said: "I would have it understood in general, that Methodists have a right to the protection of this court, if interrupted in their decent and quiet devotions; and so have dissenters from the established church likewise, if so disturbed." What amounts to a disturbance varies with the nature and objects of the meeting.7

6

§ 402 a. The foregoing discussion opens to us the general doctrines, which govern this one of the two great divisions of the act observable in criminal jurisprudence. In the next chapter, we shall look at the general doctrines governing the other division. And though the view of the indictable ground, thus obtained, will not release us from the particular examination of the particular offences with which our second volume is filled, it is a necessary introduction to

1 Bell v. Graham, 1 Nott & McCord, 278, 280; The State v. Jasper, 4 Dev. 323.

* Commonwealth v. Hoxey, 16 Mass. 385.

Rex v. Hube, Peake, 132, 5 T. R. 542. And see Rex v. Richardson, 6 Car. & P. 335; Rex v. Warren, Cowp. 371.

• Ante, § 377.

* The State v. Jasper, 4 Dev. 323.

Rex v. Wroughton, 3 Bur. 1683.

As to religious meetings, see 1 Russ. Crimes, Grea. Ed. 299. As to the rights of an audience at a theatre, Rex v. Forbes, 1 Crawf. & Dix C. C. 157.