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&c. where such offender shall be indicted for any second offence,
and is to be sufficient proof of the conviction of such offender. (a)

By this statute, in all cases in which any verdict or judgment
by default shall be had against any person for publishing any
blasphemous or seditious libel, the Judge or court may make an
order for the seizure and carrying away and detaining all copies of
the libel in the possession of the party, or of any other person

named in the order for his use. (b)
Affidavits in If a libel imputes to a man a triable offence, affidavits of its
initigation of truth cannot be given in evidence in mitigation of punishment.
punishment.

But if a libel imports to be founded on certain newspaper reports,
affidavits of the existence of such newspaper reports are admissible:
and in such case affidavits of the falsehood of such reports cannot
be received in aggravation. A libel imported to be founded on cer-
tain newspaper reports, and upon the foundation of those reports
charged certain troops with acts of murder: after conviction the
defendant offered affidavits that the newspapers did contain those
reports, and also other affidavits that the facts were true. The
former affidavits were received, because they explained the situa-
tion in which the defendant stood at the time he wrote the libel,
and shewed the impression under which he wrote: but the latter
were rejected, because the receiving them might deprive of a fair
trial persons who might afterwards be tried for the murders; and
if murders were committed, the proper course was to prosecute
and bring to a fair trial, not to libel and create an unfair preju-
dice.(9)
(a) S. 7.

By s. 10. the punishment of persons (0) See s. 1, 2. and also s. 3. as to convicted of libel in Scotland is not to Scotland. S. 8 and 9. provide for the be altered. Jimilation of actions brought for

any (9) Rex v. Burdett, 4 B. and A, 314. thing done in the execution of the act.

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CHAPTER THE TWENTY-FIFTH.

OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

The distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute. (a) These offences may be treated of more at large in the order in which they have been mentioned.

I. A riot is described to be a tumultuous disturbance of the Of a riot. peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprize of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. (6)

In some cases, in which the law authorizes force, it is not only Where the lawful, but also commendable, to make use of it; as for a sheriff law authorizes or constable, or perhaps even for a private person, to assemble a sembling will competent number of people in order with force to suppress rebels, not be riotous. or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause to

(a) I Hawk. P. C. c. 65. s. 1, 8, 9. · would probably be deemed most cor3 lpst. 176. 4 Blac. Com. 146.

rect at the pres:nt time. , It should be (0) 1 Hawk. P. C. c. 65. s. I. Three observed, however, that riot has been persons or more is the correct descrip- described diffe:rently by high authotion of the number of persons neces- rity. In Regin. v. Soley and others, 11 sary to constitute a riotous meeting: Mod. 1:6. Holt, C.J. said, “ The books but it should be observed, that in are obscure in the definition of riots, Hawkins (c. 65. 5. 2, 5, 7.) the words “I take it, it is not necessary to say "more than three persons” are thrce 'they assembled for that purpose, but times over inserted instead of three “there must be an unlawful assembly ; "persons or more ;" which in 5 Buro. “and as to what act will make a riot, Just. Riot, S. J. is remarked as an in- or trespass, such an act as will make stance that, in a variety of matter, it “a trespass will make a riot. If a is impossible for the mind of man tó "number of men assemble with arms, be always equally attentive. The de “in terrorem populi, though no act is scription of riot stated in the text, add “done, it is a riot. If three come out taken from the work of Mr. Serjeant “of an ale-house, and go armed, it is Hawkins, is submitted as that which "a riot."

fear a violent resistance, to raise the posse, in order to remove a force in making an entry into, or detaining of, lands. Also it seems to be the duty of a sheriff, or other minister of justice, have ing the execution of the king's writs, and being resisted in endeavouring to execute them, to raise such a power as may effectually enable them to overpower any such resistance ; yet it is said not to be lawful for thein to raise a force for the execution of a civil process, unless they find a resistance; and it is certain that they

are highly punishable for using any needless outrage or violence.(c) How far the It seems to be agreed, that the injury or grievance complained object must be of, and intended to be revenged or remedied by a riotous assembly, of a private nature.

must relate to some private quarrel only; as the inclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. For the proceedings of a riotous assembly on a public or general account, as to redress grievances, pull down all inclosures, or to reform religion, and also resisting the king's forces, if sent to keep the peace, may amount to overt acts of high treason by levying war against

the king. (d) As to the It seems to be clearly agreed, that in every riot there must be degree of violence or

some such circumstances either of actual fürce or violence, cr at terror. least of an apparent tendency thereto, as are naturally apt to

strike a terror into the people; as the shew of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi. (e) But it is not necessary,

in order to constitute this crime, that personal violence should have been committed. (f)

Upon these principles, assemblies at wakes, or other festival times, or meetings for the exercise of common sports or diversions, as bull-baiting, wrestling, and such like, are not riotous. (g) And upon the same ground also it seems to follow that it is possible for three persons or more to assemble together with an intention to execute a wrongful act, and also actually to perform their intended enterprize, without being rioters; as if a man assemble a number of persons to carry away a piece of timber or other thing to which he claims a right, and which cannot be carried away without a number of persons, this will not of itself be a riot, if the number of

(c) i Hawk. P. C. c. 65. 5. 2. 19 the town of Kingston; and the second, Vin. Abr. Riols, &c. (A) 4.

for a common nuisance in kicking (d) 4 Blac. Com. 147. 1 Hawk. P. about a foot-ball in the said town. C. c. 65. 9. 6.

And in Sir Authony Ashley's case, I (e) i Hawk. P. C. c. 65. s. 5. Roll. R. 109. Coke, C. J. said, that

if) Per Mansfield, C. J. in Clifford the stage-players might be indicted v. Brandon, 2 Campb. 369.

for a riot and unlawful assembly: and (g) 1 Hawk. P. C. c. 65. s. 5. But see Dalt. Just. c. 136. (citing Roll. R.) see in 2 Chit. Crim. L. 494. an indict- that if such players by their

shews ocment said to have been drawn in the casion an extraordinary and unusual year 1797, by a very eminent pleader concourse of people to see them act for the purpose of suppressing an an. their tricks, this is an unlawful assemcient custom of kicking about foot- bly and riot, for which they may be balls on a Shrose Tuesday, at Kingston- indicted and fiued. 19 Vio. Abr. Ríots, upon-Thames. The first count is for 8c. (A) 8. riotously kicking about a foot-ball in

a

persons are not more than are necessary for the purpose ; and if there are no threatening words used, nor any other disturbance of the peace; even though another man has better right to the thing carried away, and the act therefore is wrong and unlawful. (h) Much more may any person, in a peaceable manner, assemble a fit number of persons to do any lawful thing; as to remove any common nuisance, or any nuisance to his own house or land. And he may do this before any prejudice is received from the nuisance, and may also enter into another man's ground for the purpose. Thus where, a man having erected a wear across a common navigable river, divers persons assembled with spades and other instruments necessary for removing it, and dug a trench in the land of the man who made the wear in order to turn the water and the better to remove it, and thus removed the nuisance, it was holden not to be a forcible entry nor a riot. (*)

But if there be violence and tumult, it has been generally The legality or holden not to make any difference whether the act intended to be illegality of done by the persons assembled be of itself lawful or unlawful; ed to be done from whence it follows that if three or more persons assist a man not material to make a forcible entry into lands to which one of them has

if there be

violence and good right of entry; or if the like number, in a violent and tumul- tumult, tuous manner, join together in removing a nuisance or other thing, which may be lawfully done in a peaceable manner, they are as properly rioters as if the act intended to be done by them were ever so unlawful. (k) And if in removing a nuisance the persons assembled use any threatening words, (such as, they will do it though they die for it, or the like,) or in any other way behave in apparent disturbance of the peace, it seems to be a riot. (1).

But the violence and tumult must in some degree be pre- How far the meditated. For if a number of persons, being met together at a

violence and

tumult must fair, market, or any other lawful or innocent occasion, happen on

be prcmedia sudden quarrel to fall together by the ears, it seems to be agreed tated. that they are not guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention. (m) But if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous. As where it was held that although the audience in a public theatre have a right to express

(h) 1 Hawk. P. C. c. 65. s. 5. Reg. v. be guilty of a riot. Soley, 11 Mod. 117. Dalt. c. 137. 5 (1) Dalt. c. 137. 5 Burn. Just. Riot, Burn. Just. Riot, s. I.

s. 1. where it is said, that if there is (1) Dalt. c. 137. 5 Burn. Riot, s. 1. cause to remove any such nuisance,

(1) I Hawk. P. C. c. 65. s. 7. The or to do any like act, it is safest not law will not suffer persons to seek to assemble any multitude of people, redress of their private grievances by but only to send one or two persons, such dangerous disturbances of the or if a greater number, yet no more public peace; but the justice of the than are needful, and only with meet quarrel in which such an assembly tools, in order to remove it; and that may have been engaged will be con- such persous tend their business only, sidered as a great mitigation of the without disturbance of the peace, or offence. And Per Cur. in 12 Mod. threatening speeches. 648. Anon., if one goes to assert his (m) I Hawk. P. C. c. 65. s. 3. right with force and violence, he may

terwards be

riot.

the feelings excited at the moment by the performance, and in this manner to applaud or to hiss any piece which is represented, or any performer who exhibits himself on the stage ; yet if a number of persons, having come to the theatre with a predetermined purpose of interrupting the performance, for this purpose make a great noise and disturbance, so as to render the actors entirely inaudible, though without offering personal violence to any individual, or doing any injury to the house, they are guilty

of a riot. (n) Though the Even though the parties may have assembled for an innocent parties assem

purpose in the first instance, yet if they afterwards, upon a disbled in the first instance pute happening to arise amongst them, form themselves into for an inno- parties, with promises of mutual assistance, and then make an cent purpose, affray, it is said that they are guilty of a riot, because upon their they may af

confederating together with an intention to break the peace, they guilty of a may as properly be said to be assembled together for that pur

pose from the time of such confederacy, as if their first coming had been on such a design; and it seems to be clear that if, in 'an assembly of persons met together on any lawful occasion whatsoever, a sudden proposal should be started of going together in a body to pull down a house, or inclosure, or to do any other act of violence, to the disturbance of the public peace, and such motion be agreed to, and executed accordingly, the persons concerned cannot but be rioters; because their associating themselves together, for such a new purpose, is in no way extenuated

by their having met at first upon another. (o) Any person If any person, seeing others actually engaged in a riot, joins taking part in himself to them and assists them therein, he is as much a rioter as a riot is a rioter; all are

if he had at first assembled with them for the same purpose, inasprincipals. much as he has no pretence that he came innocently into the

company, but appears to have joined himself to them with an
intention of seconding them in the execution of their unlawful
enterprize: and it would be endless, as well as superfluous, to
examine whether every particular person engaged in a riot were
in truth one of the first assembly, or actually had a previous
knowledge of the design. (p) And the law is that if any person
encourages, or promotes, or takes part in riots, whether by words,
signs, or gestures, or by wearing the badge or ensign of the
rioters, he is himself to be considered a rioter; for in this case all
are principals. (9) It has been ruled, however, that if three or
more, being lawfully assembled, quarrel, and the party fall on one
of their own company, this is no riot; but that if it be on a
stranger, the very moment the quarrel begins, they begin to be an
unlawful assembly, and their concurrence is evidence of an evil
intention in them that concur, so that it is a riot in them that act,
and in no more. (r) The inciting persons to assemble in a riotous
manner appears also to have been considered as an indictable
offence. (s)
(n) Clifford v. Brandon, 2 Campb. v. Royce, 4 Burr. 2073. and the se-

cond and third resolutions in the Sis(0) I Hawk. P. C. c. 65. s. 3.

singhurst house case, I Hale 463. (p) Id. ibid.

(r) 19 Vin. Ab. Riots, &c. (A) 15. (9) By Mansfield, C. J. in Clifford v. Reg. v. Ellis, 2 Salk. 593. Brandon, 2 Campb. 370. And see Rex (s) See a precedent, Cro. Circ. Comp.

358.

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