to join in or renew such breach of the peace, in order to give him into the custody of a peace officer: provided that the person interfering uses no more force than is reasonably necessary for preventing the continuance or renewal of such breach of the peace, or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of such breach of the peace.

39. Every peace officer who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing such breach of the peace, or whom he, on reasonable and probable grounds, believes to be about to join renew such breach of the peace.

2. Every peace officer is justified in receiving into custody any person given into his charge as having been a party to a breach of the peace by one who has, or whom such peace officer, upon reasonable and probable grounds, believes to have, witnessed such breach of the peace.

46

46

It appears to have always been competent for a peace officer and even for a private individual to suppress or prevent the continuance of a breach of the peace, committed in his presence, as well as to arrest the persons committing it. (1) The Common law, right and duty of conservators of the peace and of all persons (according to their power) to keep the peace and to disperse, and, if "necessary, to arrest those who break it, is obvious and well settled." (2) In the case of an affray, peace officers have even been justified in breaking doors open, in order to suppress it, or in order to apprehend the affrayers, and either to carry them before a justice, or by their own authority, imprison them for a convenient time, until the heat was over. (3)

46

("

But, what is a breach of the peace? It is said, in regard to the criminal law of England, that, the foundation of the whole system of criminal procedure "was the prerogative of keeping the peace, which is as old as the monarchy itself, and which was, as it still is, embodied in the expression, The King's "Peace,' the legal name of the normal state of society." (4) It may, therefore, be safely asserted that, as all crimes, being public wrongs, tend more or less to affect or disturb, directly or indirectly, the good order and tranquility so essential to the general welfare of a community, the commission of an offence will nearly always include or involve a breach of the peace. But there are some offences which are directed more particularly against the public peace; or in which the breach of the peace is the prominent feature, such, for example, as an affray, an unlawful assembly, a riot, and the like. (5) An affray, (from affraier, to terrify), was by the common law the act of two or more persons fighting in some public place to the alarm of the public. If the fight were in private, it was no affray, but an assault; (6) and mere quarrelsome or threatening words would not amount to an affray; although a person, even when he uses no actual force himself, may nevertheless be guilty of an affray by, for example, assisting at a prize fight. (7) An unlawful assembly was the meeting together, -in a manner likely to endanger the peace,-of three or more persons for the carrying out of some common purpose of a private nature, there being no aggressive act actually

(1) Timothy v. Simpson, I C. M. & R. 760 ; Ingle v. Bell, 1 M. & W. 516; Grant v. Moser, 5 M. & G. 123; 1 Russ. Cr. 714; 1 Hawk. P. C., c. 63, s. 13.

done. (1) When the persons thus unlawfully assembled proceeded or moved forward to the execution of their purpose, but did not get to the point of actually executing it, it was called a rout; (2) and if they went on to the actual execution of their purpose, in a violent and alarming manner, it was a riot. (3) These differences are illustrated thus:

A hundred men armed with sticks meet together at night to consult as to destroying a fence erected by their landlord. Thus far, they are an unlawful assembly.

After thus meeting and consulting together, they march in a body in the direction of the fence. Up to this point there is a rout.

Subsequently, they arrive at the fence, and, amid great confusion and tumult, they violently pull it down. There is now a riot.

The gist of these offences has always been, not the lawfulness or the unlawfulness of the object in view, but the unlawful manner of proceeding, that is, with circumstances of force or violence calculated to inspire terror. And therefore it appears that, assembling for an unlawful object and actually executing it would not be a riot, if done peaceably. (4)

Under chapter 147 R. S. C. (now repealed by the Code) these offences were defined as follows:

66

Three or more persons who, having assembled, continue together with intent unlawfully to execute any common purpose, with force and violence, " or in a manner calculated to create terror and alarm, are guilty of an unlawful "assembly."

Three or more persons who, having assembled, continue together with "intent unlawfully to execute any common purpose, with force and violence, "or in any manner calculated to create terror and alarm, and who endeavor to "execute such purpose, are, although such purpose is not executed, guilty of a

"rout."

66

Three or more persons who, having assembled, continue together with "intent unlawfully to execute any common purpose, with force and violence, "and who wholly or in part, execute such purpose in a manner calculated to "create terror and alarm, are guilty of a riot."

"Two or more persons who fight together in a public place in a manner calculated to create terror and alarm, are guilty of an affray."

The present definitions of riots, unlawful assemblies, affrays and other similar offences against the public peace, are to be found in articles 79 to 98,

post p.p.

SUPPRESSION OF RIOT.

40. Every sheriff, deputy sheriff, mayor or other head officer or acting head officer of any county, city, town or district, and every magistrate and justice of the peace, is justified in using, and ordering to be used, and every peace officer is justified in using, such force as he, in good faith, and on reasonable and probable grounds, believes to be necessary to suppress a riot, and as is not disproportioned to the danger which he, on reasonable and probable grounds, believes to be apprehended from the continuance of the riot.

41. Every one, whether subject to military law or not, acting in good faith in obedience to orders given by any sheriff, deputy sheriff, mayor or other head officer or acting head officer of any county, city, town or district or by any magistrate or justice of the peace,

(1) R. v. Vincent, 9 C. & P. 91.

(2) 1 Hawk., P. C., c. 65, s. 8.

(3) 1 Hawk., P. C., c. 66, s. 1.

(4) Hawk. c. 65, s. 9; Harris Cr. Law, 4 Ed. 110.

for the suppression of a riot, is justified in obeying the orders so given unless such orders, are manifestly unlawful, and is protected from criminal responsibility in using such force as he, on reasonable and probable grounds, believes to be necessary for carrying into effect such orders.

2. It shall be a question of law whether any particular order is manifestly unlawful or not.

Opposite to a section identical with this article, the English Commissioners make in their draft code the following marginal note:

66

The protection given by this and the following sections to persons obeying "the orders of magistrates and military officers is perhaps carried to an extent "not yet expressly decided; but see the language of Tindal, C. J., in R. v. "Pinney, 5 C & P, and Willes, J., in Keighley v. Bell, 4 F. & F. 763." And in the body of their report upon the Draft Code the Commissioners have the following general remarks in reference to the suppression of riots: We would "direct special attention to the sections relating to the suppression of riots, particularly to their suppression by the use of military force. We do not think "that these sections differ from what would probably be held to be the law if "cases should ever occur to raise the questions which they determine, but we "cannot say that every proposition has been expressly held to be law. We must "observe in regard to all these provisions that the law upon the different matters "to which they relate has never before, so far as we know, been reduced to an

""

explicit or systematic form."

42. Every one, whether subject to military law or not, who in good faith and on reasonable and probable grounds believes that serious mischief will arise from a riot before there is time to procure the intervention of any of the authorities aforesaid, is justified in using such force as he, in good faith and on reasonable and probable grounds, believes to be necessary for the suppression of such riot, and as is not disproportioned to the danger which he, on reasonable grounds, believes to be apprehended from the continuance of the riot.

43. Every one who is bound by military law to obey the lawful command of his superior officer is justified in obeying any command given him by his superior officer for the suppression of a riot, unless such order is manifestly unlawful;

2. It shall be a question of law whether any particular order is manifestly unlawful or not.

See articles 83 and 84 post as to reading of Riot Act and dispersion of rioters.

44. Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of any offence for which if committed, the offender might be arrested without warrant, (1) and the commission of which would be likely to cause immediate and serious injury to the person or property of any one; or in order to prevent any act being done which he, on reasonable grounds, believes would, if committed, amount to any of such offences.

It was always lawful for any one to use necessary force to prevent the commission of serious crimes; and resistance to the commission of an attempted

(1) See List of these offences under Article 26, ante p 19.

felony, accompanied with force or violence, might be carried to the extent of killing the would-be felon, if his purpose could not be otherwise frustrated. (1) By the above article, the general rule, allowing the use of necessary force to prevent crime, is made to include the prevention of any of the offences for which under the Code an arrest may be made without warrant.

The cases of preservation of the peace and prevention of crime are very closely connected with each other; and the prevention of crime is also closely connected with self-defence. For example, if a highway robber attack a peaceable citizen with murderous violence, the person so attacked has three different grounds upon which he may be justified in making resistance, even with deadly weapons; namely, First-self-defence; Second,—the right of preventing an offence for which an arrest may be made without warrant; and, Third,—the right to arrest the offender in the act of committing such offence and on the ground that it is also an offence against the public peace. (2)

When homicide is committed in the prevention of a criminal act accompanied with violence, the ground upon which it is justifiable is that of necessity; and therefore the necessity must continue to the time of the killing, or it will not justify it. For, although the person upon whom a criminal attack with violence is made need not retreat, but may at once resist and even pursue his antagonist until he finds himself out of danger, still, the killing of the offender after he is properly secured and after the apprehension of danger has ceased would not be justifiable, but would be murder, unless the blood were still hot from the contest or pursuit, and then on account of the high provocation it might be held to be only manslaughter. (3)

45. Self defence against (1) unprovoked and (2) provoked assaults.— Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

of the

46. Every one who has without justification assaulted another, or has provoked an assault from that other, may nevertheless justify force subsequent to such assault, if he uses such force under reasonable apprehension of death or grievous bodily harm from the violence reasonable person first assaulted or provoked, and in the belief, on death grounds, that it is necessary for his own preservation from grievous bodily harm : Provided, that he did not commence the assault with intent to kill or do grievous bodily harm, and did not endeavour at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm: Provided also, that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.

or

(1) Handcock v. Baker, 2 Bos. & Pul. 265; 1 Russ. Cr., 5 Ed. 852; 1 Hale, 481-8, 547; Reg. v. Bull, 9 C. & P. 22; 4 Bl. Com. 180; 3 Inst. 55, 56; 1 East. P. C. 271; 1 Bish. New Cr. Law Com., ss. 849-851.

(2) Steph. Hist. Cr. Law, 14.

5 Ed. 852.

(3) 1 East., P. C., c. 5, s. 60, p. 293; 4 Bl. Com. 185; 1 Hale 485; 1 Russ, Cr.,

2. Provocation, within the meaning of this and the last preceding section, may be given by blows, words or gestures.

ILLUSTRATIONS.

A strikes B, who defends himself against A's attack, and tries to avoid further conflict; but A continues his attack with such violence that B, in reasonable fear of being seriously injured or killed, injures or slays A, in order to save himself. B is justified.

A calls B & liar or a thief, or slaps his face, or provokes him by gestures such as by distorting his mouth or laughing at him. B thereupon strikes at A with a heavy walking stick; A repels the attack, struggles with him and wrests the stick from B's grasp, and, after throwing it on the ground, A turns to go away; but B, picking up the stick rushes at A, and tries to kill him with it; when A, to save himself from being injured or killed by B's blows with the stick, strikes B with his fist and thus causes his death. A is justified.

A, with the object of obtaining a show of excuse for beating and seriously injuring B, uses towards the latter some very insulting language and gestures, which provoke B to strike A, who thereupon knocks B down, jumps upon him, and having heavy boots on, kicks him to death. A is not justified, but is guilty of murder.

The force used by way of self-defence should be proportioned to and should not exceed what is necessary to avoid the attack which is being defended; and in order to justify the use of a weapon in self-defence, a person must, if he thereby kill or seriously injure his antagonist, shew conclusively that that mode of defending himself was really necessary to preserve his own life or avoid serious bodily harm, and that, before using it, he retreated as far as he could and had no other means left of successfully resisting or escaping. (1) In fact all force used by way of self-defence must in order to be justified or excused, as such, proceed from necessity; that is to say, it can only be justified when it is necessary for the avoidance or prevention of an offered injury; (2) and in no case can the force used be justified if the circumstances shew that the offered injury could be avoided without it, or if the force used be not for actual self-defence, but by way of retaliation, no matter what the provocation for such retaliation may be. For no provocation will, for example, render homicide justifiable or excuseable. The most that any provocation can do is to reduce homicide to manslaughter. If one man kill another suddenly, without any or indeed without considerable provocation, the law implies malice, and the homicide is murder. Thus if A in passing B's shop distort his mouth and laugh at B, and B kill him, it is murder. (3) Or, if A be passing along the street, and B, meeting him, (there being a convenient space between A and the wall), take the wall of him, and thereupon A, upon this slight provocation, kill B, this is murder (4) But if there be provocation such as tends to greatly excite a person's passion, the killing in the heat of such passion will be manslaughter only. (5) For instance, during a street row, a soldier ran hastily towards the combatants, when a woman cried out: "You will not murder the man, will you?" The soldier replied: "What "is that to you, you bitch?" Upon this the woman struck the soldier with an iron patten in the face, inflicting a severe wound and drawing much blood; and as she ran away the soldier pursuing her, stabbed her in the back and killed her. This was held to be only manslaughter, the smart of the man's wound and the effusion of blood being considered likely to keep his indignation

(1) Reg. v. Smith, 8 C. & P. 160; 1 Russ. Cr. 5 Ed. 846.

(2) Fost. 273, 275; 4 Bl. Com. 184.

(3) Brain's case, 1 Hale 455.

(4) 1 Hale, 455.

(5) Kel. 135; 1 Hale, 466; Fost. 290; Arch. Cr. Pl. & Ev. 20 Ed. 721. See also article 229 of the Code post.