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fully assem meeting H. Hunt was the chairman, it was holden, that resolubling, &c. to excite discon

tions passed at a former meeting assembled a short time before, in

on pa tent and dis- a distant place, but at which H. Hunt also presided, and the affection, avowed object of which meeting was the same as that of the

meeting mentioned in the indictment, were admissible in evidence, to shew the intention of H. Hunt in assembling and attending the meeting in question. And it was holden that a copy of these resolutions delivered by H. Hunt to the witness at the time of the former meeting, as the resolutions then intended to be proposed, and which corresponded with those which the witness heard read from a written paper, was admissible, without producing the original. (P)

In the same case it appeared, that large bodies of men had come to the meeting in question from a distance, marching in regular order resembling a military march : and it was holden to be admissible evidence, to shew the character and intention of the meeting, that within two days of the time at which it took place considerable numbers were seen training and drilling before daybreak, at a place from which one of these bodies had come to the meeting; and that, upon their discovering the persons who saw them, they ill-treated them, and forced one of them to take an oath never to be a king's man again. And it was also admitted as evidence for the same purpose, that another body of men in their progress to the meeting, on passing the house of the person who had been so ill-treated, expressed their disapprobation of his conduct by hissing. (9)

It was decided in this case, that parol evidence of inscriptions and devices on banners and flags displayed at a meeting is admissible without producing the originals. (r)

And another point was also decided in this case; namely, that upon the indictment in question evidence of the supposed misconduct of those who dispersed the meeting was not admis

sible. (s) Declarations of In another case where the question was, with what intention a the parties assembling.

great number of persons assembled to drill, declarations made by those assembled and in the act of drilling, and further declarations made by others who were proceeding to the place, and solicitations made by them to others to accompany them declaratory of their object, were held to be admissible in evidence for the purpose of shewing their object. (t) And in general, evidence is admissible to shew that the meeting caused alarm and apprehension, and to prove information given to the civil authorities, and the measures taken by them in consequence of such information. (u)

Where several were indicted for a riot, it was moved, that the prosecutor might name two or three, and try it against them, and that the rest might enter into a rule to plead not guilty (guilty if the others were found guilty ;) and a rule was made accord.

(p) Rex v. Hunt and others, 3 B.and (1) Redford v. Birley, cor. Holroyd, A. 566.

J. Lancasler Spr, Assizes, 1822. 3 (9) Id. Ibid.

Slark. Evid. 1510. (r) Id. lbid,

(u) Id. Ibid. and 3 Stark. N. P. C. (8) Id. Ibid.

76.

ingly; this being to prevent the charges in putting them all to plead. (p)

The punishment for offences of the nature of riots, routs, or un- Punishment. lawful assemblies, at common law, is fine and imprisonment, in proportion to the circumstances of the offence : (9) and formerly, in cases of great enormity, it appears that the offenders were sometimes punished with the pillory ; (r) but such punishment is now taken away by the statute 56 Geo. 3. c. 138.

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270

CHAPTER THE TWENTY-SIXTH.

OF AFFRAYS.

AFFRAYS are the fighting of two or more persons in some public place, to the terror of his Majesty's subjects. (a) The derivation of the word affray is from the French effrayer, to terrify; and as in a legal sense it is taken for a public offence to the terror of the people, it seems clearly to follow that there may be an assault which will not amount to an affray: as where it happens in a private place, out of the hearing or seeing of any except the parties concerned ; in which case it cannot be said to be to the terror of the people. (b) And there may be an affray which will not amount to a riot, though many persons be engaged in it: as if a number of persons, being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, it seems agreed that they will not be guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it; and this on the ground of the design of their meeting being innocent and lawful, and the subsequent breach of the peace happening unexpectedly without any previous intention. (c) An affray differs also from a riot in this, that two persons only may be guilty of it: whereas three persons at least are necessary to constitute a riot, as has been shewn in the preceding Chapter.

An affray may be much aggravated by the circumstances under which it takes place, either, first, in respect of its dangerous tendency; secondly, in respect of the persons against whom it is committed ; or, thirdly, in respect of the place in which it happens.

An affray may receive an aggravation from its dangerous tendency; as where persons coolly and deliberately engage in a duel which cannot but be attended with the apparent danger of murder, and is not only an open defiance of the law, but carries with it a direct contempt of the justice of the nation, putting men under the necessity of righting themselves (d) And an affray may

(a) 4 Blac. Com. 144. 3 Inst. 158. so called because it affrighteth and 1 Burn. Just. Affray, I.

maketh men afraid; and is enquirable (0) 1 Hawk. P. C. c. 63. s. 1. In 3 in a leet as a common nuisance. Inst, it is said that an affray is a public (c) i Hawk. P. C. c. 65. S. 3. offence to the terror of the king's (d) I Hawk. P.C. c. 63. s. 21. This subjects; and is an English word, and would apply to such duels as were

Aggravated affrays.

amount to affray where with day cause at

receive an aggravation from the persons against whom it is committed; as where the officers of justice are violently disturbed in the due execution of their office, by the rescue of a person legally arrested, or the bare attempt to make such a rescue; the ministers of the law being under its more immediate protection. (e) And further, an affray may receive an aggravation from the place in which it is committed; it is therefore severely punishable when committed in the king's courts, or even in the palace-yard near those courts z and it is highly fineable when made in the presence of any of the king's inferior courts of justice. (f) And, upon the same account also, affrays in a church or church-yard have always been esteemed very heinous offences, as being very great indignities to the Divine Majesty, to whose worship and service such places are immediately dedicated. (g)

It is said, that no quarrelsome or threatening words whatsoever Words will not can amount to an affray; and that no one can justify laying his make an affray. hands on those who shall barely quarrel with angry words, without coming to blows: but it seems that a constable may, at the re- But there may quest of the party threatened, carry the person who threatens to be an affray beat him before a justice, in order to find sureties. And granting

where there is

kaming no actual viothat no bare words, in the judgment of law, carry in them so much lence, as where terror as to amount to an affray, yet it seems certain that in some a person gocs cases there may be an affray where there is no actual violence; as

armed, where persons arm themselves with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people; which is said to have been always an offence at common law, and is strictly prohibited by several statutes. (h)

The principal of these statutes is 2 Edw. 3. c. 3. sometimes 2 Edw. 3. c. 3. spoken of as the statute of Northampton. It enacts, that no man, Persons pro

9 hibited from of what condition soever, except the king's servants in his presence, and his ministers in executing their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, shall come before the king's justices or other of the king's ministers doing their office, with force and arms, nor bring any force in affray of peace, (i) nor go nor ride armed, by night or day, in fairs or markets, or in the presence of the king's justices, or other ministers, or elsewhere ; upon pain to forfeit their armour to the king, and their bodies to prison at the king's pleasure. The statute also provides, that the king's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises and their bailiffs in the same, and mayors and bailiffs of cities and boroughs within the same, and boroughfought in ancient times; and to such (g) 1 Hawk. P. C. c. 63. s. 23. And as have been occasionally heard of, io see post, Chap. xxviii. Of Disturbmore modern days, in neighbouring ances in Places of Public Worship. countries, fought amidst a number of (h) Id. ibid. sect. 2, 4, spectators. But qu. if a duel, as (1) The words of the statute are en usually conducted in this country of affrai de la pees. But Lord Coke, in lale years, would be an affray?

che prin strictly said to havies will mith danno actu

3 Inst. 158. cites it as en effraier de (e) { Hawk. P. C. c. 63. s. 22. Aud ia pais ; and observes, that the writ see post, Chap. on ķescue.

grounded upon the statute says in quo(f) i Hawk. P. C. c. 21. S. 6, 10. rundam de populo terrorev, and that c. 63. 9. 23. As to striking in the therefore the printed book (in affruy courts of justice, see post, Book III. de la peace) should be amended. Chap. on Aggravated Assaults.

med.

holders, constables, and wardens of the peace within their wards, shall have power to execute the act: and that the judges of assize may enquire and punish such officers as have not done that which pertained to their office. This statute is further enforced by 7 Rich. 2. c. 13. and by the 20 Rich. 2. c. 1. which adds the

further punishment of a fine. Construction In the exposition of this statute of 2 Edw. 3. it has been holden, of 2 Edw. 3. c. that no wearing of arms is within its meaning, unless it be ac3. as to persons

companied with such circumstances as are apt to terrify the going armed.

people; from whence it seems clearly to foliow, that persons of quality are in no danger of offending against the statute by wearing common weapons, or having their usual number of attendants with them for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence, or disturbance of the peace. (k) And no person is within the intention of the statute, who arms himself to suppress dangerous rioters, rebels, or enemies, and endeavours to suppress or resist such disturbers of the peace and quiet of the realm. (1) But a man cannot excuse wearing such armour in public by alleging that a person threatened him, and that he wears it for the safety of his person from the assault : though no one will incur the penalty of the statute, for assembling his neighbours and friends in his own house, against those who threaten to do him any violence therein, because a man's house is as his castle. (m)

It may be useful to mention shortly the acts which may be done for the suppression of an affray, by a private person, by a consta

ble, or by a justice of peace. of the suppres. It seems to be agreed, that any one who sees others fighting sion of affrays by a private

may lawfully part them, and also stay them till the heat be over, person.

and then deliver them to the constable, who may carry them before a justice of peace, in order to their finding sureties for the peace; and it is said that any private person may stop those whom he shall see coming to join either party. (n) And it seems to be clear that if either party be dangerously wounded in such an

(K) 1 Hawk. P. C. c. 63. s. 9. are punishable by twelve months' im(1) Id. sect. 10.

prisonment for the first offence, and (m) Id. s. 8. and see in s. 5, 6, 7. as for any subsequent offence to be adto the proceedings of justices, &c. judged felons. executing the act. As to arms in Ire (n) i Hawk. P. C. c. 68. S. 11. land, the 47 G. 3. sess. 2. c. 54 was Where it is said that from hence it passed, and is intituled, “An act to seems clearly to follow, that if a man is prevent improper persons from hav- receive a hurt from either party, in “ing arms in Ireland ;" and having thus endeavouring to preserve the heen continued and amended from peace, he shall have his remedy by an time to time, was further continued action against him: and that upon the for five years, and until the end of the same ground it seems equally reasonthen next session of parliament by 4 able that if he unavoidably happen to G. 4. c. 14. By this act of 47 G. 3. it burt either party, in thus doing what is felony to make pikes, &c. under the law both allows and commends, certain circumstances, without a li- he may well justify it; inasmuch as cence, s. 1]. And by s. 12. justices he is no way in fault, and the damage may search for pikes, &c.; and per- done to the other was oceasioned by so ns having such instruments in pos- a laudable intention to do bim a kindsession under certain circumstances,

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