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. (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. (7) 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 constable, or by a justice of peace.

by a private

It seems to be agreed, that any one who sees others fighting may Of the suppreslawfully part them, and also stay them till the heat be over, and then sion of affrays deliver them to the constable, who may carry them before a justice person. 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) 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 shews 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, 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 on the information and complaint of another,

(m) Id. sec. 8, and see in ss. 5, 6, 7, as to the proceedings of justices, &c., executing the act. As to arms in Ireland, the 47 Geo. 3, sess. 2, c. 54, was passed, and is intituled, "An act to prevent improper persons from having arms in Ireland ;" and having been continued and amended from time to time, was further continued for one year, and until the end of the then next session of parliament by 3 & 4 Vic. c. 32. By this act of 47 Geo. 3, it is felony to make pikes, &c., under certain circumstances, without a license, s. 11. And by sec. 12, justices may search for pikes, &c.; and persons having such instruments in possession under certain circumstances, are punishable by twelve months' imprisonment

for the first offence, and for any subsequent
offence to be adjudged felons.

(n) 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 endeavouring to pre-
serve the peace, he shall have his remedy
by an action against him; and that upon
the same ground it seems equally reason-
able 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. 286, note.

arrest the offenders, and of course the person so complaining is justified in giving the charge to the constable. The plaintiff went into the defendant's shop, and offered to purchase an article at a price marked on a ticket; the plaintiff disputed with the shopman about the price, and was desired to leave the shop, which he refused to do, and declared he would strike any man who laid hands on him: a shopman then struck him on the face; the plaintiff returned the blow, and a contest commenced, the noise of which brought down the defendant from the room above; when he came down the plaintiff was scuffling with the shopman; the defendant sent for a policeman, and on his arrival the plaintiff was requested by the defendant to go from the shop quietly, but he refused; he was standing still in the shop, insisting on his right to remain there, and a mob gathering round the door, when the defendant gave him in charge to the policeman, who took him to the police station. It was held that the defendant had a right, the danger continuing, to deliver the plaintiff into the hands of the policeman, and that the circumstance that the plaintiff was not guilty of the first illegal violence made no difference; for at the time the defendant interfered he was ignorant of that fact: he saw the plaintiff and others in a mutual contest, and that mutual contest the law gave him power to terminate, for the sake of securing the peace of his house and neighbourhood, and the persons of all those concerned from violence. (n) And it seems to be clear, that if either party be dangerously wounded in such an 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 empowered, as all private persons are, to part an affray which happens in his presence, but is also bound, at his peril, to use his best endeavours for this purpose: (00) 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,

(n) Timothy v. Simpson, 5 Tyrw. 244. 1 C., M. & R. 757.

(0) 1 Hawk. P. C. c. 63, s. 12. 3 Inst., 158.

(00) See the charge of Tindal, C. J., ante, p. 286, note.

(p) 1 Hawk. P. C. c. 63, 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? At least it should seem, there must be some circumstances of extraordinary violence in the affray to justify him in so doing.

(q) Id. ibid. sec. 15.

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)

It has been much doubted whether a private individual, who has seen an affray committed, may give in charge to a constable who has not; and whether such constable may, therefore, take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there was no danger of renewal ;(s) but it seems now to be settled 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, (t) 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; and where a breach of the peace has been committed, and is over, the constable must proceed in the same way as any other person, namely, by obtaining a warrant from a magistrate. (u) 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. (v)

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

(r) Id. ibid. sec. 14.

(s) See Timothy v. Simpson, 5 Tyrw. 244. S. C. 1 C., M. & R. 757. The Court did not decide the question. They observed, "the power of a constable to take into his custody, upon a reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now as to the authority of a constable, it is perfectly clear that he is not entitled to arrest in order himself to take sureties of the peace, for he cannot administer an oath. Sharrock r. Hannemer, Cro. Eliz. 375, Owen, 105, S. C. nom. Scarrett v. Tanner. But whether he has that power in order to take before a magistrate, that he may take sureties of the peace, is a question on which the authorities differ. Lord Hale seems to have been of opinion that a constable has this power, 2 H. P. C. 89, and the same rule has been laid down at Nisi Prius by Lord Mansfield, in a case referred to in 2 East, 306, and by Buller, J., in two others, one quoted in the same place, and another cited in 3 Campb. N. P. 421. On the other hand, there is a dictum to the contrary in Brooke's Abridgment, tit. Faux Imprisonment, which is referred to and adopted by Lord Coke in 2 Inst. 52; and Lord Holt, in 2 Lord Ray.

1301.Reg.v. Tooley, expresses the same opi-
nion. Lord C. J. Eyre, in Coupey v. Henley,
1 Esp. C. N. P. 540, does the same, and
many of the modern text-books state that
to be the law. Burn's Just. 26th ed. tit.
Arrest, 258. Bac. Abr. (D) tit. Trespass,
53. 2 East, P. C. 506. Hawk. P. C. b. 2,
c. 13, s. 8."
(t) Cook v. Nethercote, 6 C. & P.
741, Alderson, B. Fox v. Gaunt, 3 B.
& Ad. 798. Rex v. Curvan, R. & M.
C. C. R. 132. Rex v. Bright, 4 C. & P.
387. See these cases, post, Book iii., tit.
Manslaughter in Resisting Officers.

(u) Cook v. Nethercote, supra.

(v) 1 Hawk. P. C. c. 63, s. 17, citing Lamb. 131, and Dalt. c. 8. Dalton howover does not seem to warrant the position; but on the contrary, he says, that "the constable may not imprison the parties unless the affray was in his presence," and it seems the position is very doubtful: the constable cannot apprehend affrayers on the information of others, because in misdemeanors he cannot act except upon view, and the same reason applies to the case of a person brought in custody by a person who apprehended him on the spot. C. S. G.

affrays by a justice of peace.

Punishment of affrays.

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. (w)

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. (x)

(w) 1 Hawk. P. C. c. 63, s. 19. As maliciously wounding is now a felony under the 1 Vict. c. 85, s. 4, whether the case would have been murder or manslaughter, in case death had ensued, the proper course

in such cases is to commit, unless the case be one of doubt, within the 7 Geo. 4, c. 64, s. 1. C. S. G.

(x) 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)

The offence of endeavouring to provoke another to send a chal- of endeavour ing to provoke lenge to fight was much considered in a modern case, in which it another to 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)

It has been considered that mere words of provocation, as "liar" Of words of and "knave," though motives and mediate provocation for a breach provocation. 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. (ƒ)