that a single justice may arrest persons riotously assembled, and may also authorize others to arrest them by a parol command. By the 13 Hen. 4, c. 7, s. 1, the justices of the peace, three or two of them at the least, and the sheriff or undersheriff of the county where any riot, assembly, or rout of people against the law shall be made, shall come with the power of the county (if need be) to arrest them; and shall arrest them; and shall have power to record that which they shall find so done in their presence against the law and by such record the offenders shall be convicted in the same manner as is contained in the statute of forcible entries.(h) In the interpretation of this statute it has been holden, that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable.(i)

:

An indictment for a riot must show for what act the rioters assembled, that the Court may judge whether it was lawful or not:(k) and it must state that the defendants unlawfully assembled; for a riot is a compound offence: there must be not only an unlawful act to be done, but an unlawful assembly of more than two persons.() In a case where six persons being indicted for a riot, two of them died without being tried, two were acquitted, and the other two were found guilty, the Court refused to arrest the judgment, saying, that as the jury had found two persons to be guilty of a riot, it must have been together with those two who had never been tried, as it could not otherwise have been a riot. (m) But as two persons only cannot be guilty of a riot, it was held, that where several were indicted, and all but two were acquitted, no judgment could be given against the two.(n) And though the indictment in this case charged a battery upon an individual as well as a riot, and it was argued that the riotose, &c., was only to express the manner of the assault, and a kind of aggravation of the offence, it was held that the two persons could not be intended to be guilty of the battery; that the offence was special and laid as a riot, the riotose extending to all the facts, and the battery being but part of the riot; so that the defendants being acquitted of the riot were acquitted of the whole of which they were indicted. But it was also held, *404] that if the indictment had been, that the defendants, with divers other disturbers of the peace, had committed this riot and battery, and the verdict had been as in this case, the King might have had judgment.(0)

If an indictment for a riot and assault do not conclude in terrorem populi, and there be no evidence of an assault, the defendants must be acquitted:(p) but if such an indictment charge the defendants with a riot and cutting down fences, they may be convicted of an unlawful assembly, notwithstanding the want of such a conclusion.(q) An indictment, however, upon the 1 Geo. 1, st. 2, c. 5, s. 1, for remaining assembled one hour after proclamation has been made, need not charge the riot to have been in terrorem populi.(r)

Upon an indictment against H. Hunt and others, for a conspiracy, and unlawfully meeting together with persons unknown, for the purpose of exciting discontent

(h) 5 R. 2, st. 1, c. 7.

(i) 4 Blac. Com. 146, 147; 1 Hale 495. The 17 R. 2, c. 8; 2 Hen. 5, c. 8, and 19 Hen. 7, c. 13, relate also to summary proceedings of justices, &c., in cases of riots, which it is not thought necessary to mention further in this work. The different statutes and the construction put upon them may be seen in 1 Hawk. P. C. c. 65, s. 14, et seq. and Burn, tit. Riots, &c., II., III., IV., V. The 2 Hen. 5, c. 8; 2 Hen. 5, c. 9; and 2 Hen. 6, c. 14, relate to process out of Chancery in cases of riots.

(k) Reg. v. Gulston, 2 Lord Raym. 1210.

(1) Reg. v. Soley, 2 Salk. 593, 594.

(m) Rex v. Scott and another, 3 Burr. 1262.

(n) Rex v. Sadbury and others, 1 Lord Raym. 484; and see 19 Vin. Abr. tit. Riots (E.) 1.

(0) Rex v. Sadbury and others, 1 Lord Raym. 484; s. c., 2 Salk. 593, and 12 Mod. 262; 19 Vin. Abr. tit. Riots (E.) 6.

(p) Rex v. Hughes, 4 C. & P. 373 (19 E. C. L. R.), Park, J. J. A. But see the 14 & 15 Vict. c. 100, s. 24.

(9) Rex v. Cox, 4 C. & P. 538 (19 E. C. L. R.), Patteson, J.

(r) Rex v.

James, 5 C. & P. 153 (24 E. C. L. R.), Patteson, J., MS. C. S. G.

S. C.

and disaffection, at which meeting H. Hunt was the chairman, it was holden, that resolutions passed at a former meeting assembled a short time before, in a distant place, but at which H. Hunt also presided, and the avowed object of which meeting was the same as that of the meeting mentioned in the indictment, were admissible in evidence, to show 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.(s)

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 show 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 (t)

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.(u)

And that upon the indictment in question evidence of the supposed misconduct of those who dispersed the meeting was not admissible.(v)

*Where the question was, with what intention a great number of persons [*405 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 showing their object.(w) And in general, evidence is admissible to show 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.(x)

It was held by the judges,(y) on the special commission of 1830, 1831, at Salisbury, that the prisoners must first be identified as forming part of the crowd before the riot is proved, and the fifteen judges confirmed the holding of the special commission.(z) But this is a very inconvenient course, and causing much waste of time by recalling witnesses; and it has since been held that in riot, the prosecutor is entitled to prove the acts of any of the rioters before he connects the others with the riot, (a) and this is in conformity with the practice in cases of conspiracy.(b) 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 accordingly; this being to prevent the charges in putting them all to plead.(c)

The punishment for offences of the nature of riots, routs, or unlawful assemblies, at common law, is fine and imprisonment, in proportion to the circumstances of the

(*) Rex v. Hunt, 3 B. & A. 566 (5 E. C. L. R.).

(t) Id. Ibid.

(u) Id. Ibid.

(v) Id. Ibid.

(w) Redford v. Birley, cor. Holroyd, J.; 3 Stark. N. P. C. 76 (3 E. C. L. R.).

(z) Id. Ibid.

(y) Vaughan, B., Park and Alderson, JJ.

(z) Per Alderson, B., in Nicholson's case, 1 Lew. 300, where the same course was adopted.

(a) Reg. v. Cooper, Stafford Summer Ass. 1850, Williams, J., MSS. C. S. G.

(b) See vol. III., p. 167.

(e) Anon., 2 Salk. 317; Reg. v. Middlemore, 6 Mod. 212.

1 Patten v. People, 18 Mich. 314.

offence (d) and formerly, in cases of great enormity, it appears that the offenders were sometimes punished with the pillory; (e) but such punishment is now taken away by the 56 Geo. 3, c. 138.

And by the 3 Geo. 4, c. 114, whenever any person shall be convicted of a riot, "it shall and may be lawful for the Court before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order, if such Court shall think it fit, sentence of imprisonment, with hard labor, for any term, not exceeding the term for which such Court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders, by any law in force before the passing of this Act; and every such offender shall thereupon suffer such sentence, in such place, and for such time as aforesaid, as such Court shall think fit to direct."

*406]

*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) Thus, where two of the prisoners had fought together amidst a great crowd of persons, and the others were present aiding and assisting, at a place a considerable distance from any highway; and the fight ceased on the appearance of some peace officers, it was held that this was not an affray; for an affray must occur in some public place, and this was to all intents and purposes a private one.(c) 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,

(d) 1 Hawk. P. C. c. 65, s. 12.

(e) Id. Ibid.

(a) 4 Blac. Com. 144; 3 Inst. 158; Burn's Just. tit. Affray, I.

(b) 1 Hawk. P. C. c. 63, sec. 1. In 3 Inst. 158, it is said that an affray is a public offence to the terror of the King's subjects; and is an English word, and so called because it affrighteth and maketh men afraid; and is inquirable in a leet as a common nuisance.

(c) Reg. v. Hunt, 1 Cox C. C. 177, Alderson, B. If all the persons present went to see the fight, they were all guilty of an assault: Rex v. Perkins, 4 C. & P. 537 (19 E. C. L. R.), Patteson, J. An assembly for a prize fight is clearly an unlawful assembly, and where there is resistance to lawful authority exercised for the purpose of putting a stop to it, the offence may amount to an affray, or even a riot: Reg. v. Billingham, 2 C. & P. 234 (12 E. C. L. R.), Burrough, J,

1 An indictment for an affray must charge the fighting to have been in a public place: State v. Heflin, 8 Hump. 84. An indictment charged that two persons with force, and arms, &c., "did make an affray by fighting." It is held that this charge of fighting was sufficiently certain and definite and the indictment valid: State v. Benthal, 5 Humph. 519. Mere words do not constitute an affray; nor is a party guilty of that offence who offers no resistance to an attack made upon him, although the attack is induced by insulting language used by him to the assailant: O'Neill v. State, 16 Ala. 65. Words alone will not constitute an affray; but accompanied by acts, such as drawing knives or attempting to use them in a public street of a city will: Hawkin v. State, 13 Geo. 322. A field surrounded by a forest and situated one mile from any highway or other public place, does not lose its private character by the casual presence of three persons, so as to make two of them, who fight together willingly guilty of an affray: Taylor v. State, 22 Ala. 15. Affray and assault are distinct offences: Champer v. State, 14 Ohio (N. S.) 437. See Roscoe on Criminal Evidence, 7 Am. ed., p. 270, note.

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. (d) 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 shown 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, [*407 but carries with it a direct contempt of the justice of the nation, putting men under the necessity of righting themselves. (e) And an affray may 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. (f) 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.(g) 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.(h)

It is said, that no quarrelsome or threatening words whatsoever can amount to an affray; and that no one can justify laying his hands on those who shall barely quarrel with angry words, without coming to blows: but it seems that a constable may, at the request of the party threatened, carry the person who threatens to beat him before a justice, in order to find sureties. And granting that no bare words, in the judgment of law, carry in them so much terror as to amount to an affray, yet it seems certain that in some 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.(i)1

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

(d) 1 Hawk. P. C. c. 65, s. 3.

(e) 1 Hawk. P. C. c. 63, s. 21. This would apply to such duels as were fought in ancient times; and to such as have been occasionally heard of, in more modern days, in neighboring countries, fought amid a number of spectators. But, qu., if a duel as usually conducted in this country of late years, would be an affray.

(f) 1 Hawk. P. C. c. 63, s. 22. And see post, chap. on Rescue.

(g) 1 Hawk. P. C. c. 21, s. 6, 10; c. 63, s. 23. As to striking in the courts of justice, see post, p. 1036, Aggravated Assaults.

(h) 1 Hawk. P. C. c. 63, s. 23. And see post, p. 415, Of Disturbances in Places of Public Worship.

(i) Id. Ibid., secs. 2, 4.

1 Contra, Simpson v. State, 5 Yerg. 356. If one person, by such abusive language as is calculated and intended to bring on a fight, induces the other to strike him, he is guilty of an affray, though he may be unable to return the blow: State v. Perry, 5 Jones (Law) 9.

peace,(k) 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 armor 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, *408] 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 borough-holders, constables, and wardens of the peace within their wards, shall have power to execute the act; and that the judges of assize may inquire and punish such officers as have not done that which pertained to their office.(7)

In the exposition of the 2 Edw. 3, c. 3, it has been holden, that no wearing of arms is within its meaning, unless it be accompanied with such circumstances as are apt to terrify the people; from whence it seems clearly to follow, 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.(m) And no person is within the intention of the statute who arms himself to suppress dangerous rioters, rebels, or enemies, and endeavors to suppress or resist such disturbers of the peace and quiet of the realm.(n) But a man cannot excuse wearing such armor 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 neighbors 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.(o)

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 constable, or by a justice of peace.

It seems to be agreed, that any one who sees others fighting may lawfully part them, and also stay them till the heat be over, and then deliver them to the constable, who may carry them before a justice of the 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.(p) Any person present may arrest the affrayer at the moment of the affray, and detain him till his passion has cooled and his desire to break the peace has ceased, and then deliver him to a peace officer; and so any person may arrest an affrayer after the actual violence is over, but whilst he shows a disposition to renew it by persisting in remaining on the spot where he has committed it. Both cases fall within the same principle, which is that for the sake of the preservation of the peace, any individual who sees it broken, *409] may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts. In truth, whilst those are assembled together who have committed acts of violence, and the danger of their renewal continues, the affray itself may be said to continue and during the affray, the constable may, not merely on his own view, but

(k) The words of the statute are en affrai de la pees. But Lord Coke, in 3 Inst. 158, cites it as en affraier de la pais; and observes, that the writ grounded upon the statute says in quorundam de populo terrorem, and that therefore the printed book (en affray de la peace) · should be amended.

(1) The 7 R. 2, c. 13, and 20 R. 2, c. 1, enforcing this Act, are repealed by the 19 & 20 Vict. c. 64.

(0) Id. sec. 8, and see in secs. 5, 6, 7, as to the proceedings of justices, &c, executing the Act.

(p) 1 Hawk. P. C. c. 63, s. 11. Where it is said that from hence it seems clearly to follow, that if a man receive a hurt from either party, in thus endeavoring to preserve the peace, he shall have his remedy by an action against him; and that upon the same ground it seems equally reasonable that if he unavoidably happen to hurt either party, in thus doing what the law both allows and commends, he may well justify it; inasmuch as he is no way in fault, and the damage done to the other was occasioned by a laudable intention to do him a kindness. See particularly the charge of Tindal, C. J., to the Bristol grand jury, ante, p. 402, note (g).