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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, 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 that 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 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, hibited from of what condition soever, except the king's servants in his pre- going armed. sence, 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 (8) 1 Hawk. P. C. c. 63. s. 23. And as have been occasionally heard of, in see post, Chap. xxviii. Of Disturbmore modern days, in neighbouring ances in Places of Public Worship. countries, fought anidst a number of (h) Id. ibid. sect. 2, 4, spectators. But qu. if a duel, as (i) 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? 3 Inst. 158. cites it as en effraier de
(e) i Hawk. P. C. c. 63. s. 22. Aud ja pais ; and observes, that the writ see posl, Chap. on Kescue.
grounded upon the statute says in quo(f) i Hawk. P. C. c. 21. s. 6, 10. rundam de populo lerrorem, and that c. 63. 9. 23. As to striking in the therefore the printed book (en affray courts of justice, see post, Book III. de la peace) should be amended. Chap. on Aggravated Assaults.
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. is to persons companied with such circumstances as are apt to terrify the going
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. (l) 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 be
fore 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
(1) i 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. II. 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 * prevent improper persons from bav. receive a húrt from either party, in
ing arms in Ireland;" and having thus endeavouring to preserve the been 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 bappen to G. 4. c. 14. By this act of 47 G. 3. it hurt 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). Avd 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 occasioned by so ns having such instruments in pos- a laudable intention to do him a kindsession under certain circumstances,
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. (o) .
It seems agreed, that a constable is not only impowered, as all of the suppres. private persons are, to part an affray which happens in his pre- sion of affrays sence; but is also bound, at his peril, to use his best endeavours by a constable. for this purpose : 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. 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. (p) 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 them; 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. (9) It is said also that if a constable see persons either actually engaged in an affray, as by striking, or offering to strike, or 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 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. (r)
But it seems to be the better opinion, 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, 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: nor does it follow, from his having power to compel those to find sureties who break the peace in his presence, that he has the same power over those who break it in his absence; inasmuch as in such case it is most proper to be done by those who may examine the whole
(0) 1 Hawk. P. C. C. 63. s. 12. 3 At least, it should seem, there must be Inst. 158.
some circumstances of extraordinary (p) Id. ibid, s. 13, 16. But qu. if a violence in the affray to justify him constable can safely break open tbe in so doing. doors of a dwelling bouse in such (9) Id. ibid. sect. 15. case, without a magistrate's warrant? (r) Id. ibid. sect. 14.
circumstances of the matter upon oath, which a constable cannot do: yet it is said 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. (s)
| 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. Also it seems that a justice of peace has a greater power over one who has dangerously wounded another in an affray, than either a private person or a constable ; for there does not seem to be any good authority, that these have any power to take sureties of such an offender : but it seems certain that a justice of the peace has a discretionary power, either to commit him, or to bail him till the year and day be past. It is said, hoever, that a justice ought to be very cautious how he takes bail, if the wound be dangerous; since, if the party die, and the offender do not appear, the justice is in danger of being severely fined, if upon the whole circumstances of the case he has been too favourable. (1)
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. (u)
(8) 1 Hawk. P. C. c. 63. s. 17. It is judgment of Mansfield, C. J. in Clifsubmitted that a constable cannot, in ford v. Brandon, 2 Campb. 367, 371. a case of affray, arrest without a war- and see Reg. v. Tooley and others, 2 rant from a magistrate, unless he sees Lord Raym. 1296. and post, Book III. an actual breach of the peace com- Chap. iii. on Manslaughter, S. 4. mitted ; or, in other words, flagrante (1) 1 Hawk P.C. c. 63, s. 19. delicto. He cannot arrest of his own (1) 4 Blac. Com. 145. I Hawk. P.C. authority after the affray is over. See c. 63. s. 20. the argument of Best, Serjt. and the
Punishment of affrays.
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)
The offence of endeavouring to provoke another to send a chal- Of endeavourlenge to fight was much considered in a modern case, in which it ing to provoke was held to be an indictable misdemeanor: and more especially as
send a chalsuch provocation was given in a letter containing libellous matter, lenge. 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. (c) And the sending such letter was held to be an act done towards the procuring the commission of the misdemeanor meant to be accomplished. (d) In this case, with respect to the of the intent. 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. (e)
(a) 1 Hawk. P. C. c. 63. s. 3. 3 Inst. “ of the Carmarthenshire election bu158. 4 Blac, Com. 150. Hicks's case, “siness, as far as it relates to me, you Hob. 215.
“ have behaved like a blackguard. I (b) Rex v. Rice, 3 East, 581. “ shall expect to hear from you on
(c) Rex v. Phillips, 6 East. 464. The “ this subject, and will punctually letter was “ Sir-It will, I conclude, “ attend to any appointment you may from the description you gave of
“think proper to make." “ your feelings and ideas with
respect (d) See ante, 44, 45. “ to insult, in a letter to Mr. Jones, (e) Rex v. Phillips, 6 East. 470 to “ of last Monday's date, be sufficient 475. · for me to tell you, tbat in the whole