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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 suppresprivate 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 og 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 in. trusted 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. (g) 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 house in such (q) Id. ibid. sect. 15. case, without a magistrate's warrant? (r) Id. ibid. sect. 14.

VOL. I.

Of the suppression of affrays by a justice of peace.

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. (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. (1)

(8) I 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, 37). a case of affray, arrest without a war- and see Reg. v. Tooley and others, . 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 (u) 4 Blac. Com. 145. 1 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.

r to

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 re-
flections, 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) I 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 (6) Rex v. Rice, 3 East, 581. “ shall expect to hear from you on

(c) Rex v. Pbillips, 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

Of words of It has been considered that mere words of provocation, as provocation.

“ 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) :C. 14. With respect to challenges given on account of money won by 8. 8. challenges on account of gaming, it is enacted by 9 Ann. c. 14. s. 8. that whoever shall money won by challenge or provoke to fight any other person or persons whatgaming.

soever 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. The venue may In a case where a person wrote a letter with intent to provoke a be in the county in which the challenge, sealed it up, and put it into the twopenny post-office in challenge is put a street in Westminster, addressed to the prosecutor in the city of into the post- London, by whom it was there received; Lord Ellenborough, C. J. office.

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) Of proceeding

It may be observed, before this subject is concluded, that sendby criminal

ing 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. (l) 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) : Punishment.

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.

(1) Rex v. Hankey, I Burr. 316. (g) Regin. v. Langley, 6 Mod. 125. where it is said that the court held S. C. 2 Lord Faym. 1031.

that it might have been right to bave (h) The rule given in 3 Inst. 158. granted cross informations, in case is-Quando aliquid prohibetur, prohi- each party had applied for an inbelur et omne per quod devenitur ad formation against the other. illud,

(m) Rex v. Chappel, i Burr. 402. (0) In the first section of the act, the (n) Rex v. Rice, 3 East. 584. in words are “ cards, dice, tables, tennis, which case the defendant (though he 6. bowls, or other game or games what had undergone some imprisonment, “ soever.”

and though there were several cir(k) Rex v. Williams, 2 Campb, 506. cumstances tending inaterially to miti

mation.

gate his offence,) was sentenced to pay duelling, says, “ upon which consia fine of 1001, and to be imprisoned “derations persons convicted of barely for one calendar month, and at the “ sending a challenge have been adexpiration of that time to give secu- “judged to pay a fine of 1001. and rity to keep the peace for three years, "to be imprisoned for one month himself in 10001. and two sureties in “ without bail, and also to make a 2501, each, and to be further impri- " public acknowledgment of their ofsoned till such fine was paid and such “ fence, and to be bound to their securities given. Hawkins, speaking '“ good behaviour." 1 Hawk. P. C. of the pernicious consequences of c. 63. s. 21.

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