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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. (0)

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- by a constable. sion of affrays sence; but is also bound, at his peril, to use his best endeavours 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. (q) 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 violence in the affray to justify him in so doing.

(p) Id. ibid. s. 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?

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(q) Id. ibid. sect. 15.
(r) Id. ibid. sect. 14.

Of the suppression of affrays by a justice of peace.

Punishment

of affrays.

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, however, 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. (t)

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 submitted that a constable cannot, in a case of affray, arrest without a warrant from a magistrate, unless he sees an actual breach of the peace committed; or, in other words, flagrante delicto. He cannot arrest of his own authority after the affray is over. See the argument of Best, Serjt. and the

judgment of Mansfield, C. J. in Clifford v. Brandon, 2 Campb. 367, 371. and see Reg. v. Tooley and others, 2 Lord Raym. 1296. and post, Book III. Chap. iii. on Manslaughter, S. 4.

() 1 Hawk P. C. c. 63. s. 19.

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

CHAPTER THE TWENTY-SEVENTH.

OF CHALLENGING TO FIGHT.

Ir 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)

of endeavour

another to

ing to provoke

send a chal

The offence of endeavouring to provoke another to send a challenge to fight was much considered in a modern 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, 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. 158. 4 Blac. Com: 150. Hicks's case, Hob. 215.

(b) Rex v. Rice, 3 East. 581.

(c) Rex v. Phillips, 6 East. 464. The letter was "Sir-It will, I conclude, "from the description you gave of "your feelings and ideas with respect "to insult, in a letter to Mr. Jones, "of last Monday's date, be sufficient “for me to tell you, that in the whole

"of the Carmarthenshire election bu-
"siness, as far as it relates to me, you

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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."

(d) See ante, 44, 45.

(e) Rex v. Phillips, 6 East. 470 to

475.

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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. (f) But words which directly tend to a breach of the peace may be indictable; as if one man challenges another by words; (g) 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. (h)

With respect to challenges given on account of money won by gaming, it is enacted by 9 Ann. c. 14. s. 8. that whoever shall challenge or provoke to fight any other person or persons whatsoever upon account of any money won by gaming, playing, or betting, at any of the games mentioned in the act, (i) shall, upon conviction by indictment or information, forfeit all their goods, chattels, and personal estate, and suffer imprisonment without bail, in the county prison, for two years.

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 King'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 shew 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)

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

(g) Regin. v. Langley, 6 Mod. 125. S. C. 2 Lord Faym. 1031.

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

illud.

(i) In the first section of the act, the words are "cards, dice, tables, tennis, "bowls, or other game or games what "soever."

(k) Rex v. Williams, 2 Campb, 506.

(1) Rex 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) Rex v. Chappel, 1 Burr. 402.

(n) Rex 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 miti

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