tion, motion in arrest of judgment, on the ground this was
no offence at common law, being nugatory, only a mere at
tempt at extortion. On the first argument, the court doubted
if this was an indictable offence, at common law, "being no
more than a threat to bring an action of debt for penalties un-
der a statute, which a firm man might well be presumed to
resist ;" observed, the information was not framed on any
statute; and asked if before 30 Geo. II. c. 24,
"there was
any case in the books of an indictment at common law, for
such a threat, even where money was obtained, unless where
the threat was of personal violence, or calculated to create
such fear as might be supposed to operate in constantem vi-
rum, so as to constitute robbery; or unless the offence was
laid in conspiracy." On the second argument, the attorney
general, Gibbs, argued much at large, that this was an offence
indictable at common law, and before 18 El. c. 5, s. 4, and
laid down sundry principles, and cited many cases, particular-
ly Rex v. Scofield, and Rex v. Higgins, proving "that an at-
tempt to commit a misdemeanor by any act done towards its
completion, though not effectual to the purpose, is itself a mis-
demeanor." "So where a statute creates a misdemeanor,
any attempt by overt act to commit such offence must be it-
self a misdemeanor, at common law;" "by the same rule as
where a statute creates a new felony it draws after it all the
incidents of a felony at common law, such as accessaries be-
fore and after the fact, and misprision of felony." "Here
the 15th count alleges facts which would constitute a misde-
meanor under the statute 18 Eliz. c. 5,"" the attempt to com-
mit such misdemeanor as laid in the other counts, must neces-
sarily be a misdemeanor at common law." Judgment arrest-
ed. Principal reasons stated by Lord Ellenborough C. J.
"To obtain money under a threat of any kind, or to attempt
to do it, is no doubt an immoral act; but to make it indictable
the threat must be of such a nature as is calculated to over-
come a firm and prudent man." "Now the threat used by
the deft. at its utmost extent, was no more than that he would
charge the party with a certain penalty for selling medicines
without a stamp" "this is not such a threat as a firm and
prudent man might not and ought not to have resisted." The
case of the Queen v. Woodward & al., was a case of actual
duress. "The law distinguishes between threats of actual vi-
olence against the person, or such other threats as a man of
common firmness cannot stand against, and other sorts of
threats." "Money obtained in the former cases under the in-
fluence of such threats may amount to robbery, but not so in
cases of threats of other kinds." The case of Mackarty and
Fordenbourg, was an exchange of unwholesome wine, not fit

CH. 204.

Art. 14.

CH. 204. for man to drink, and a deceit, but this is a case of threatening, Art. 14. and not of deceit; and must be a threat of such a kind as will sustain an indictment at common law, according to one case, either attended with duress, or according to others, such as may overcome the ordinary free will of a firm man, and induce him, from fear, to part with his money. "This is not the present case." It is a mere threat to bring an action which a man of ordinary firmness might have resisted.

Grose J. thought it did not appear that any misdemeanor was intended.

Lawence J. thought, if it had been shewn that the Allens were guilty, and so had incurred a statute penalty, this might have been an indictable offence; for he agreed "there is no difference in the respect contended for, between an attempt to commit an offence at common law, and one which is created by statute." But the indictment does not shew" the deft. attempted to commit a misdemeanor." The deft's. name, however, was not allowed to remain on the rolls of the

court.

In this great case it appears, first, to send a letter to one, threatening to sue him for a statute penalty, if he do not compromise, is not indictable at common law, because it ought not to overcome a man of ordinary firmness, but he may be expected to resist the menace.

Second. But it is so indictable if the threat be such as to overcome such a man, one firm and prudent.

Third. Therefore if the party menacing have the one threatened in his custody, and threaten to send him to prison, if he do not give money &c., this an offence indictable, for here a firm man, so in custody, may reasonably be overcome and yield to the threats.

Fourth. So threats of violence against the person, may well so overcome a firm and prudent man, and so be indictable.

Indictment 4. It must be confessed it is very uncertain what is or is not for assaulta threat that may reasonably overcome a man of ordinary firming, menacing with loss ness and prudence, to induce him, when free and innocent, to of life &c., give his money to avoid a suit for a statute penalty. And it 6 Wentw. is certainly to be wished, at least, that the law may find some 392, 394, three counts. principle less vague whereon to prove and punish crimes. 5. The Provincial Legislature of Massachusetts attemptMass. Temp. Act, passed ed, by statute, to punish the offence of contriving or sending any incendiary or menacing letters in order to extort sums of money or other things of value from any of his Majesty's subjects. This act was kept in force till November 1, 1797. This act recited, that of late divers letters without a name were sent to such subjects, demanding large sums of money, and threatening destruction to their persons and estates, on failure

1749.

to comply &c., and enacted, "that if any person or persons CH. 204. shall send any such letter or letters without a name subscribed, Art. 14. or signed with a fictitious or counterfeit name, requiring or demanding any 'sum or sums of money, or any other valuable thing, knowing the purport thereof," or contrived or advised the same, or indited or wrote the same, on conviction, should be punished with the gallows, pillory, cropping, and imprisonment for three years, and hard work that time, and every three months in the three years be whipped twenty stripes. Also made a high misdemeanor to not make known such letters, though not concerned. Act ordered to be read in all March town-meetings. This act was suffered to expire in 1797; probably some extraordinary case gave rise to it. But it did not respect any person who signed his name to his letter. The kind of punishment inflicted by this act indicates more passion than usual in the legislature.

6. Sending menacing letters, with a view to extort money, 2 Dallas, 297, is indictable at common law.

299.

§ 7. It will be observed, that so far as we have in this State any prosecutions in regard to threatening letters, they must be on the principles of the common law; and, therefore, prosecutions grounded on the English statutes on this subject, do not exactly apply in our practice. Still, however, these may be of some use, as in them some expressions used by the common law are well explained. In every society, the most moral, there will exist an evil disposition in some to extort, or get money or things of value by threats, by insinuations, by deception, or in some wicked way; therefore, in every nation there must be some law in force on this subject. And here it is the common law, which is not confined to threatening letters, but extends to other writings and means made use of for such wicked purposes. The mischief is briefly described in the said act of 1749, and more fully in the English black act, 9 Geo. I. c. 22; and acts 27 Geo. I. c. 15; and 30 Cited East's Geo. II. and other English acts. And among other things, it is to be observed, that as to crimes, threats to charge one with, they extend only to crimes punishable with death, transportation, or other infamous punishment. And it will be noticed, that in Rex v. Southerton the insinuation did not extend so far.

$9. The offence, at common law, consists in sending threatening letters &c., demanding money or other things of value; and menacing some destruction to person or property, or some penal prosecution on non-compliance.

C. L. 1104,

1126.

1110, 1115,

In this case held, 1. That a threatening letter signed R. R. East's C. L. demanding a bank note &c. was a letter without a name : 2. Robinson's That a bank note is a thing of value: 3. That it is sufficient case, A. D.

1796.

CH. 204. if the thing demanded be of value at the time of the demand Art. 14. made: 4. That a mere asking charity is not a demand the law notices, but it must be accompanied with some express or implied threat; a requisition that may operate as a force on the mind of the person to whom addressed: 5. That both previous and subsequent letters may be received in evidence of the letter set forth in the indictment, passed between the prosecutor and prisoner, relating to the subject matter of the letter so set forth, the threat in which was to publish a libel, accusing the prosecutor of a certain murder if he did not send a bank note: 6. That whether the letter do amount to a demand of money &c. or not, is a question for the judges to decide on reading it, as it is set out in the record.

2 Leach, 499, Hammond's

case.

Girdwood's

case, 1

§ 10. Held, that if a wife write a threatening letter herself, without any interference of her husband, and send it by him without his knowing any thing of the contents, she alone may be found guilty, (on an indictment against both.)

§ 11. Held, that evidence the prisoner delivered a threatLeach, 169. ening letter sealed up to A, by whom it was put in the post, and so conveyed to the prosecutor, is sufficient to go to the jury that the prisoner sent such letter, knowing the contents: 2. A letter accusing D of having taken away the life of a friend of the writer, who is come to revenge him, is evidence to go to the jury of sending a letter threatening to kill and murder the prosecutor: 3. The trial may be in the county where the prosecutor received the letter by the post, though delivered by the prisoner, and put into the post in another county.

Jepson's

case, East's C. L. 1115, 1116, A. D. 1798.

Heming's case, A. D. 1799, East's C. L. 1116, 1117.

Major's case, East's C. L. 1118, 1122.

§ 12. Held in this case, that if A write a letter to B, threatening to burn a mill in which he once had an interest, but had sold it three years before, if he did not release a certain woman alleged to be confined by him; such letter as to the mill must be laid out of the case.

13. So decided in this case, that if A write a threatening letter to B, not subscribing his name, but in the terms of it so referring to facts and circumstances, as plainly must be intended to shew who the writer is, and demanding a sum of money in dispute between A and B, which B had received, and A had before insisted should be accounted for to him, is not a threatening letter within 9 or 27 Geo. I. and it may be added, not at common law; because the writer makes himself known, and demands a right.

§ 14. Edward Major was indicted for sending a threatening letter, intending to extort and gain money. This cannot be supported by shewing a letter threatening to accuse the prosecutor of an unnatural crime, if he did not give up a certain bill, drawn by the prisoner, and held by the prosecutor. And

it is sending a letter to A, if it be placed where he is likely to find it, or it is likely to be found and delivered to him, as if put into his yard &c.

15. It is a settled rule, that the indictment must set forth the letter itself, that the court may judge of it. Though these cases were mostly on the statutes, yet it is clear the points above stated hold good, and are law in common law cases; and so apply in substance in our practice.

16. Spreading false news, fine, &c. at common law; Virginia, fine, binding to the peace, &c. Vir. Body of Laws, 5.

CH. 205.

Art. 1.

CHAPTER CCV.

FORESTALLING, ENGROSSING MONOPOLIES, AND REGRATING.

ART. 1. General principles. Forestalling &c. are offences against public trade, and have existed in all countries and ages, and will probably exist as long as men shall be influenced by avarice and a sordid love of gain; as long as many of them shall prefer living and gaining property by arts and contrivances in trade, to honest and laborious industry. These evils and offences have ever been seen, especially among trading people. Numerous have been the remedies which have been attempted to prevent them, and often but to little purpose. Engrossing, forestalling, regrating, and monopolies, are evils and offences generally seen, but often too indefinite, diffuse, and varying to be the subjects of criminal proceeding and of punishment. It is often extremely difficult to prove the facts and the frauds which really exist, and often when proved it is extremely difficult to bring them within the precise rules of criminal law; for these and many other reasons, probably not one offence of this kind in hundreds has ever been. punished or prosecuted. Though these evils continually exist in our country, and especially in the vicinities of our large and commercial towns and long have existed, scarcely a pro- q. t for foresecution for one of them is to be recollected. Often have stalling bark statutes been specially framed and enacted to suppress them, to sell, but usually they have been a dead letter. Nothing more can Jam. 1, 4. be attempted here than to ascertain what is or is not fore- Went. 7, 9. stalling &c., by what law, and how punished.

Information

against 1