ART. LXX. If any relation of a minor heir or heirs, after having been legally summoned to compose a family meeting of such minor heir or heirs, shall fail to attend according to the summons, he shall be liable to a fine at the discretion of the court issuing the summons, not exceeding twenty dollars, to be applied by the court towards defraying the expenses of convoking and holding such family meeting; which fines shall be collected in the same manner as are collected the fines imposed on witnesses failing to attend after having been regularly summoned.

55 § 1, act 10 March, 1834, p. 112.

CHAPTER V.

OFFENCES AGAINST THE PUBLIC PEACE.

LXXI. Riots, routs, and unlawful assemblies.

LXXII.

Disturbing any peaceable assembly of the people. LXXIII. Destroying levee or embankment of any river or navigable water. LXXIV. Libels. LXXV. Carrying concealed weapons. LXXVI-LXXVII. Challenges to fight, and duelling where no homicide ensues.

ART. LXXI. Whoever shall make, or knowingly assist at any rout, riot, or unlawful assembly, shall, on conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court.2

ART. LXXII.3 Any person or persons who shall maliciously disturb or cause any disturbance to be made, whereby any peaceable assembling of the people is disturbed, he, she, or they shall be considered as having committed a breach of the peace, and shall, upon conviction thereof, be fined in a sum not exceeding one hundred dollars, and imprisoned for a term not exceeding ten days, at the discretion of the court,

1 Part of § 31, act 4 May, 1805, 1 D. 369.

2 See § 12, act of 19 March, 1818, 1 D. 389, art. DXXXVII, which provides, that where "the punishment of fine and imprisonment is left by law at the discretion of any court, the fine shall not exceed one thousand dollars, nor the imprisonment two years."

3 § 1, act 19 February, 1840, p. 11.

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and that for any second conviction the punishment shall be doubled.1

ART. LXXIII.5 Whoever shall wilfully and maliciously pull down or destroy any levee or embankment on any of the rivers or navigable waters of this [state], shall, on conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court."

ART. LXXIV. Whoever shall maliciously defame any person by making, writing, publishing, or causing to be published, any manner of libel, shall, on conviction thereof,

4 The second section of this act provides

That it shall be the duty of any justice of the peace upon affidavit to bind the parties complained of, who shall give sufficient security for their appearance at the next term of the district court, where they shall be prosecuted in the same manner as for other breaches of the peace.

5 Part of § 31, act 4 May, 1805, 1 D. 369.

6 See note 2, ante.

7 Part of § 31, act 4 May, 1805, 1 D. 369.

8 In the case of the Territory v. Nugent, 1 Martin, 103, attachment issued against the defendant for a contempt of court by a libellous publication, and he gave bail to answer interrogatories; the offence being of an aggravated character, the court required security for his good behavior for six months. On a motion to be released from his bond, the court, overruling the motion, said "I cannot even upon the high authority which is offered (Lord C. J. Camden, in King v. Wilkes, 2 Wilson, 159), admit that it is absurd to require bail from a libeller. To publish a libel is an indictable offence, and I do not see how the prosecution is to be carried on, if the person of the offender be not at first secured, and how, after arrest, he may be discharged, except upon bail.

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With regard to surety of the peace, if it be not to be required of a libeller, it is because the publication of a libel is said not to be a breach of the peaceand, therefore, requiring that surety would not have the effect of preventing a reiteration of the offence, as such a reiteration would not be a breach of the peace, and consequently, would not occasion the forfeiture of the recognizance. In this sense I understand Lord Chief Justice Camden. The defendant in the case cited, Mr. Wilkes, was a member of parliament, and was charged with the publication of a libel. He contended, and I admit, with propriety, that his situation protected him from arrest in all cases, except treason, felony, and breach of the peace, and the offence with which he stood charged was not treason, felony, nor a breach of the peace: but I am not to conclude that if ho

suffer fine or imprisonment, or both, at the discretion of the

court.9

had not been a member of parliament, surety for his good behavior could not have been required of him.

"All the elementary writers agree that surety for the good behavior may be required of persons charged with the offence sworn to have been committed by the present defendant. One may be bound to his good behavior, for words tending to scandalize the government, or in abuse of the officers of justice, especially in the execution of their office, 4 Black. 253,-for speaking words of contempt of an inferior magistrate, as a justice of the peace, and a mayor, though he be not then in the actual execution of his office; and of an inferior officer of justice, as a constable, and such like, being in the execution of his office. 1 Hawk. 132.

"In the 18th year of Edward 3d, one John de Northampton acknowledged himself the writer of a letter, deemed by the court to be a libel against John Fenners, one of the king's council, and committitur marescallo, et postea in venit 6 manucaptories pro bono gestu. 3 Co. Inst. c. 76, 174.

“The common law has provideď a proper method for the punishment of scandalous words [spoken of magistrates] viz. binding to the good behavior: by Holt, C. J. in Regina v. Rogers, 2 Ld. Raymond, 778.

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Langley was indicted for speaking these words to the mayor of Salisbury, ' you are a rogue and a rascal,' and by Holt, C. J., the mayor had done well if he had bound the defendant over to his good behavior. Ibid, 1029. 2 Salk. 697.

"A magistrate may bind to good behavior a person who abuses him. 1 Cro. 78.

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The practice of requiring security for the good behavior from libellers prevails in the United States. Chief Justice M'Kean of Pennsylvania demanded it from Cobbett, 1 Am. Law Journ. 287. In the case of the Commonwealth v. Duane, ibid, 168, Chief Justice Tilghman said: 'I will not say that there are not circumstances in which surety for the good behavior might be exacted in cases of libels, before conviction; on the contrary, I have no doubt, but there are occasions, on which it may be proper and necessary to insist on it,' It is true the Chief Justice declared his opinion, that as a general rule it would be better not to require it. But the defendant has for a long time persisted in the practice, and it is time to put a stop to it. It is better to prevent, than to punish crimes.

"It is also proper to be observed that the case on which the defendant relies, is generally believed not to have been very accurately reported. Ridgeway, in his edition of Cases tempore Hardwicke, mentions it among the cases doubted, or denied to be law, and, page 102 in notis, informs us that Lord Chief Baron Yelverton, in a case tried before him, Griffin v. Carleton, men tioned the principle contended for as depending on a loose saying of Lord Camden in Wilkes' case, and stated his apprehension that the report of it is

ART. LXXV.10 Any person who shall be found with any concealed weapon, such as a dirk, dagger, knife, pistol, or any

not correct. The editor also mentions the cases of the King v. Rowan, and the King v. Drennan, as recent instances of a contrary practice in Ireland.

"Where the writing is so clear as to amount of itself to a libel, all foreign circumstances introduced upon the record are unnecessary. Rex v. Home, Cowper, 683. The publication being confessed, the court has only to announce whether it amounts to a contempt or not. The intention, giving it the utmost latitude, can be taken only in mitigation. It cannot make the publication less a contempt-a man may not justify his conduct by saying, I have offended, but did not mean to sin. Denying any disrespectful intention is no justification, if the words published be, in the opinion of the court, contemptuous. The People v. Frier, Cains, 485."

"In

Same case, on a motion for a new trial. 11 Martin, 108. Per cur. criminal prosecutions in the courts of this territory, the rules of evidence are, by an act of the legislature, declared to be those of the common law of England. 1805, c. 50 § 33.

"The truth of a libel is not admissible evidence: neither is the bad reputation of the person libelled. 2 M'Nally's Ev. 649. Hawk. P. C. ca. 73. 3

Bac. 495.

"It is immaterial with respect to the essence of the libel, whether the matter be true or false, since the provocation, and not the falsity, is the thing to be punished. 4 Black. 150. Wood's Ins. 424. For in a settled state of government the party grieved ought to complain for every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious course of libelling, or otherwise. The case de libellis famosis, 5 Co. 125 b.

"A libel, though the contents be true, is not to be justified. Hob. 253. It is punishable though the matter be true. Moor. 627. It is a libel, though it be true, for it tends to private quarrels and revenge. 4 Com. 150.

"A man may justify in an action for words or a libel, otherwise in an indict. ment, per Holt, C. J. 3 Salk. 326. 11 Mo. 99.

"And yet, although the law allows the party to justify in an action for words spoken, it does not for written scandal. 3 Bac. 495.

"After so many concurring authorities from the English elementary writers and reporters, it must be concluded that according to the rules of the common law, the court could not have allowed the defendant in this case to have introduced witnesses to prove the truth of the facts charged in the libel. But it is contended that the people of this country have a constitutional right to the liberty of the press, and this principle of the common law, being irreconcileable with this right, is not binding on the court, although recognized by the act of the legislature.

"Constitutional as well as other rights, are to be exercised so that they work no injury to others. Sic utere tuo ne alios lædas. Our fellow citizens in the