whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts. In truth, whilst those are assembled together who have committed acts of violence, and the danger of their renewal continues, the affray itself may be said to continue: and during the affray, the constable may, not merely on his own view, but on the information and complaint of another, arrest the offenders, and of course the person so complaining is justified in giving the charge to the constable. (p) And it seems to be clear that if either party be dangerously wounded in such an affray, and a stander by, endeavouring to arrest the other, be not able to take him without hurting or even wounding him, yet he is in no way liable to be punished, inasmuch as he is bound, under pain of fine and imprisonment, to arrest such an offender, and either detain him till it appear whether the party will live or die, or carry him before a justice of peace. (g)

Suppression of affrays by a constable. A constable is not only empowered, as all private persons are, to part an affray which happens in his presence, but is also bound, at his peril, to use his best endeavours for this purpose: (r) and not only to do his utmost himself, but also to demand the assistance of others, which, if they refuse to give him, they are punishable with fine and imprisonment. In order to support an indictment against a person for refusing to aid and assist a constable in the execution of his duty in quelling a riot, it is necessary to prove: first, that the constable actually saw a breach of the peace committed by two or more persons; secondly, that there was a reasonable necessity for the constable calling upon other persons for their assistance and support; and lastly, that the defendant was duly called upon to render his assistance, and that, without any physical impossibility or lawful excuse, he refused to give it; and whether the aid of the defendant, if given, would have proved sufficient or useful, is not the question or criterion. (s) And it is laid down in the books, that if an affray be in a house, the constable may break open the doors to preserve the peace; and if affrayers fly to a house, and he follow with fresh suit, he may break open the doors to take them. (t) And so far is the constable intrusted with a power over all actual affrays, that though he himself is a sufferer by them, and therefore liable to be objected against, as likely to be partial in his own cause, yet he may suppress; and therefore if an assault be made upon him, he may not only defend himself but also imprison the offender in the same manner as if he were in no way a party. (u) It is said also, that if a constable see persons either actually engaged in an affray, as by striking, or offering to strike, by drawing their weapons, &c., or upon the very point of entering upon an affray, as where one shall threaten to kill, wound, or beat another, he may

(p) See Timothy v. Simpson, 5 Tyrw. 244. 1 C. M. & R. 757.

(q) 1 Hawk. P. C. c. 63, s. 12, 3 Inst. 158.

(2) See the charge of Tindal, C. J., ante, p. 582, note (d).

(s) R. v. Brown, C. & M. 314. See R. v. Sherlock, 35 L. J. M. C. 92.

(t) 1 Hawk. P. C. c. 63, ss. 13, 16. But, qu., if a constable can safely break open the doors of a dwelling house in such case, without a magistrate's warrant. At least, it should seem, there must be some circumstances of extraordinary violence in the affray to justify him in so doing.

(u) Id. ibid. s. 15.

either carry the offender before a justice of the peace, to the end that such justice may compel him to find sureties for the peace, &c., or he may imprison him of his own authority for a reasonable time till the heat be over, and also afterwards detain him till he find such surety by obligation. But it seems that he has no power to imprison such an offender in any other manner, or for any other purpose; for he cannot justify the committing an affrayer to gaol till he shall be punished for his offence; and it is said that he ought not to lay hands on those who barely contend with hot words, without any threats of personal hurt and that all which he can do in such a case is to command them, under pain of imprisonment, to avoid fighting. (~)

It has been doubted whether a private individual, who has seen an affray committed, may give in charge to a constable who has not; and whether such constable may, therefore, take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there was no danger of renewal; (w) but it seems now to be settled that a constable has no power to arrest a man for an affray done out of his own view, without a warrant from a justice of peace, (x) unless a felony be done or likely to be done: for it is the proper business of a constable to preserve the peace, not to punish the breach of it; and where a breach of the peace has been committed, and is over, the constable must proceed in the same way as any other person, namely, by obtaining a warrant from a magistrate. (y) It is said (see ante, p. 392) that he may carry those before a justice of peace who were arrested by such as were present at an affray, and delivered by them into his hands. (2) Where the plaintiff

(v) 1 Hawk. P. C. c. 63, s. 14.

(w) See Timothy v. Simpson, 5 Tyrw. 244. S. C. 1 C. M. & R. 757. The Court did not decide the question. They observed, 'the power of a constable to take into his custody, upon a reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now, as to the authority of a constable, it is perfectly clear that he is not entitled to arrest in order himself to take sureties of the peace, for he cannot administer an oath. Sharrock v. Hannemer, Cro. Eliz. 375, Owen, 105, S. C. nom. Scarrett v. Tanner. But whether he has that power in order to take before a magistrate, that he may take sureties of the peace, is a question on which the authorities differ. Lord Hale seems to have been of opinion that a constable has this power, 2 H. P. C. 89, and the same rule has been laid down at Nisi Prius by Lord Mansfield, in a case referred to in 2 East, 306, and by Buller, J., in two others, one quoted in the same place, and another cited in 3 Campb. N. P. 421. On the other hand, there is a dictum to the contrary in Brooke's Abridgment, tit. Faux Imprisonment, which is referred to and adopted by Lord Coke in 2 Inst. 52; and Lord Holt, in 2 Lord Ray. 1301, R. v. Tooley, expresses the same opinion. Eyre, C. J., in Coupey v. Henley, 1 Esp. C. N. P. 540, does the same, and

many of the text-books state that to be the law. Burn's Just. 258, tit. Arrest, 26th edit. Bac. Abr. (D.) tit. Trespass, 53. 2 East, P. C. 506. Hawk. P. C. b. 2, c. 13, s. 8.

(x) Cook v. Nethercote, 6 C. & P. 741, Alderson, B. Fox v. Gaunt, 3 B. & Ad. 798. R. v. Curvan, R. & M. C. C. R. 132. R. v. Bright, 4 C. & P. 387. R. v. Light, D. & B. C. C. 332. R. v. Walker, Dears. C. C. 358. See these cases, post, and Cohen v. Huskisson, 2 M. & W. 477. Baynes v. Brewster, 2 Q. B. 375. Webster v. Watts, 11 Q. B. 311.

(y) Cook v. Nethercote, supra. See the 2 & 3 Vict. c. 47, s. 65, the Metropolitan Police Act, as to the apprehension of persons on a charge of aggravated assault committed out of sight of a policeman.

(z) 1 Hawk. P. C. c. 63, s. 17, citing Lamb. 131, and Dalt. c. 8. Dalton says, 'every private man, being present, may stay the affrayers till their heat be over, and then deliver them to the constables to imprison them till they find surety for the peace' which seems to imply that they may take them before a justice, in order that they may find such sureties and as it seems that the private individual might take them for that purpose before a justice, it is but reasonable that the constables should have the authority to take them likewise. See ante, p. 589.

was imprisoned by a constable in a cell on a false charge of assault, and the defendant, another constable, on hearing the charge from a third constable, without inquiry into the facts, took the plaintiff before the magistrates, it was held that the defendant, in order to justify himself, was bound to show that the charge was well founded, and having failed to do so, was liable to an action of trespass. (a)

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Suppression of affrays by a justice of peace. There is no doubt but that a justice of peace may and must do all such things for the suppression of an affray, which private men or constables are either enabled or required by the law to do: but it is said that he cannot, without a warrant, authorize the arrest of any person for an affray out of his view. Yet it seems clear, that in such case he may make his warrant to bring the offender before him, in order to compel him to find sureties for the peace. (b)

Punishment of affrays. The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case: for where there is any material aggravation, the punishment will be proportionably increased. (c)

(a) Griffin v. Coleman, 4 H. & N. 265. (b) 1 Hawk. P. C. c. 63, s. 19.

(c) 4 Blac. Com. 145. 1 Hawk. P. C. c. 63, s. 20.

CHAPTER THE TWENTY-SEVENTH.

OF CHALLENGING TO FIGHT.

It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavour to provoke another to send a challenge, or to fight; as by dispersing letters, for that purpose, full of reflections, and insinuating a desire to fight. (a) And it will be no excuse for a party so offending that he has received provocation: for as, if one person should kill another, in a deliberate duel, under the provocation of charges against his character and conduct ever so grievous, it will be murder in him and his second; the bare incitement to fight, though under such provocation, is in itself a very high misdemeanor, though no consequence ensue thereon against the peace. (b) Where, after a prisoner had been convicted, his brother went to the house of the foreman of the jury, and challenged him to mortal combat, it was held that this was a high contempt of the Court before which the trial was held, and punishable as such. (c)

The offence of endeavouring to provoke another to send a challenge to fight was much considered in one case, in which it was held to be an indictable misdemeanor: and more especially as such provocation was given in a letter containing libellous matter, and as the prefatory part of the indictment alleged that the defendant intended to do the party bodily harm, and to break the King's peace. (d) And the sending such letter was held to be an act done towards the procuring the commission of the misdemeanor meant to be accomplished. (e) In this case, with respect to the intent of the defendant, the rule was adopted that where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved; though it is sufficient to allege it in the prefatory part of the indictment: but that where the act is in itself unlawful, the law infers an evil intent; and the allegation of such intent is merely matter of form, and need not be proved by extrinsic evidence on the part of the prosecution. (ƒ)

ideas with respect to insult, in a letter to Mr. Jones, of last Monday's date, be suffi cient for me to tell you, that in the whole of the Carmarthenshire election business, as far as it relates to me, you have behaved like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make."

(e) See ante, pp. 195, 196.

(ƒ) R. v. Phillips, 6 East, 470 to 475.

It has been considered that mere words of provocation, as liar' and 'knave,' though motives and mediate provocation for a breach of the peace, yet do not tend immediately to the breach of the peace, like a challenge to fight, or a threatening to beat another. (g) But words which directly tend to a breach of the peace may be indictable; as if one man challenge another by words; (h) and if it can be proved that the words used were intended to provoke the party to whom they were addressed to give a challenge, the case would seem to fall within the same rule. (¿)

In a case where a person wrote a letter with intent to provoke a challenge, sealed it up, and put it into the twopenny post-office in a street in Westminster, addressed to the prosecutor in the city of London, by whom it was there received; Lord Ellenborough, Č. J., held that the defendant might be indicted in Middlesex, as there was a sufficient publication in that county by putting the letter into the post-office there, with the intent that it should be delivered to the prosecutor elsewhere; and that if the letter had never been delivered, the defendant's offence would have been the same. (k)

It may be observed, before this subject is concluded, that sending a challenge is an offence for which the Court of Queen's Bench will grant a criminal information: but in a case where it appeared, upon the affidavits, that the party applying for an information had himself given the first challenge, the Court refused to proceed against the other party by way of information; and left the prosecutor to his ordinary remedy by action or indictment. (1) A rule to show cause why such an information should not be granted has been made, upon producing copies only of the letters in which the challenge was contained, such copies being sufficiently verified. (m)

The punishment for this offence, as a misdemeanor, is discretionary, and must be guided by such circumstances of aggravation or mitigation as are to be found in each particular case. (n)

(9) King's case, 4 Inst. 181.

(h) R. v. Langley, 6 Mod. 125, S. C. 2 Lord Raym. 1031.

(i) The rule given in 3 Inst. 158, is Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.

(k) R. v. Williams, 2 Campb. 506. (7) R. v. Hankey, 1 Burr. 316, where it is said that the Court held that it might have been right to have granted cross informations, in case each party had applied for an information against the other.

(m) R. v. Chappel, 1 Burr. 402.

(n) R. v. Rice, 3 East, 584, in which case the defendant (though he had undergone some imprisonment, and though there were several circumstances tending materially to

mitigate his offence) was sentenced to pay a fine of £100, and to be imprisoned for one calendar month, and at the expiration of that time to give security to keep the peace for three years, himself in £1,000 and two sureties in £250 each, and to be further imprisoned till such fine was paid and such securities given. Hawkins, speaking of the pernicious consequence of duelling, says, upon which considerations persons convicted of barely sending a challenge have been adjudged to pay a fine of £100, and to be imprisoned for one month without bail, and also to make a public acknowledgment of their offence, and to be bound to their good behaviour.' 1 Hawk. P. C. c. 63, s. 21.