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or in part) by persons riotously and tumultuously assembled together, the inhabitants of the hundred shall be liable to yield full compensation (f); provided that the persons damnified, or such of them as have knowledge of the circumstances, or the servants who had the care of the property, shall, within seven days, go before some justice of the peace residing near and having jurisdiction ; and state upon oath the names of the offenders, if known; and submit to examination touching the circumstances; and become bound, by recognizance, to prosecute : and provided also, that an action against the hundred be commenced within three calendar months after the offence (9).
III. By 24 & 25 Vict. c. 100, s. 16, whosoever shall maliciously send, deliver or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person (h), shall be guilty of felony and punishable by penal servitude for ten years, or not less than five (i), or by imprisonment with or without hard labour and solitary confinement to the extent of two years, and with whipping if the court thinks fit and the offender be a male under the age of sixteen years (k).
(f) As to the “hundred,” vide tion of ships or boats stranded or sup. vol. 1. p. 126.
in distress. (9) When the damage caused by (h) It is remarked by Blackstone the demolition or attempted demo- (vol. iv. p. 143), that this crime was lition does not exceed 301. the statute formerly high treason by 8 Hen. 5, (7 & 8 Geo. 4, c. 31, s. 8) gives, c. 6. As to the “new and strange instead of an action, a summary treasons,” invented at that period proceeding before justices at a spe- of our history and afterwards done cial petty session. By 2 & 3 Will. 4, away with by 1 Edw. 6, c. 12, vide c. 72, the provisions of 7 & 8 Geo. 4, c. 31, on this subject are (i) See 27 & 28 Vict. c. 47. extended to the damage or destruc- (k) The former provisions on tion of threshing machines: and this subject, contained in 9 Geo. 1, by the Merchant Shipping Act, c. 22, and 27 Geo. 2, c. 15, were re1854 (17 & 18 Vict. c. 104), s. 477, pealed by 4 Geo. 4, c. 54, s. 3, which to the plunder, damage or destruc- was itself repealed by 24 & 25 Vict.
sup. p. 162.
The offences already mentioned comprise such breaches of the peace as amount to felony. The remainder are of a lighter character.
IV. [Affrays, (from affraier, to terrify,) are the fighting of two or more persons in some public place (1), to the terror of her Majesty's subjects; for if the fighting be in private it is no affray, but an assault (m). Affrays are misdemeanors; and may be suppressed by any private person present: who is justifiable in endeavouring to part the combatants, whatever consequences may ensue (n). But more especially the constable or other similar officer, however denominated, is bound to keep the peace; and to that purpose may break open doors to suppress an affray, or apprehend the affrayers : and may either carry them before a justice, or imprison them by his own authority for a convenient space till the heat is over (o). 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 proportionably increases. As where two persons coolly and deliberately engage in a duel (p); this being attended with an apparent intention and danger of murder, and being a high contempt of the justice of the nation, is a strong aggravation of the affray,] and may even amount to felony under 24 & 25 Vict. c. 100, s. 14, though no mischief has actually en
c. 95. It may be observed, that the offender, on conviction, may also, if the court see fit, be bound over with sureties to keep the peace. (24 & 25 Vict. c. 100, s. 71.)
(1) As in the case of a prize fight or other pugilistic combat. 1 East, P. C. c. 5, s. 41; R. v. Bellingham, 2 C. & P. 234; Hawk. P. C. b. 1, c. 63, s. 2.
(m) Hawk. P. C. ubi sup.
(n) Hawk. P. C. b. 1, c. 63, s. 13.
(0) Ibid. It seems that a constable has no power to arrest without warrant, for an affray committed out of his own presence. See Cook :. Nethercote, 6 C. & P. 741; Fox v. Gaunt, 3 B. & Ad. 798; R. v. Curvan, R. & M. C.C. R. 132; R. v. Bright, 4 C. & P. 387.
(9) Hawk. P. C. b. 1, c. 63, s. 21
sued (1). [Another aggravation is, when thereby the ministers of justice are disturbed in the due execution of their office; or where a respect to the particular place, ought to restrain and regulate men's behaviour more than in common ones, as in the court of the sovereign, and the like (r). And upon the same account also, all affrays in a church or churchyard, are esteemed very heinous offences; as being indignities to Him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an offence in any other place, are penal here. For it is enacted by statute 5 & 6 Edw. VI. c. 4(s), that if any person shall - by words only-quarrel, chide, or brawl in a church or churchyard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiæ ; and, if a clerk in orders, from the ministration of his office during pleasure (t): and if any person in such church or churchyard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto (u).] And though these enactments are now, by 23 & 24 Vict. c. 32, s. 5, repealed as to brawling by a person not in holy orders, yet they are in other respects still in force (x). Two persons may be guilty of an affray; but
V. Riots, routs, and unlawful assemblies, all of which
(9) Vide sup. p. 78.
(2) The 23 & 24 Vict. 32, also (r) Hawk. P. C. b. 1, c. 21, ss. 6, imposes a penalty to the extent of 10; c. 63, s. 23. As to striking and 51., (or imprisonment to the extent other outrage in the king's courts, of two months,) on the offence of &c., vide sup. p. 224.
riotous, violent, or indecent beha(8) See also 1 W. & M. st. 1, c. viour by any person in any church 18, s. 18.
or place of worship, or in any (t) As to this statute, see Cox v. churchyard or burial-ground; and Goodday, 2 Hagg. R. 139.
also on the offence of molesting, (u) Further provisions were made, troubling, misusing, &c., any auby this statute, for the case of thorized preacher, or clergyman in weapons being used or drawn in holy orders, in his celebration of churches, &c.; but these were re- any divine service or office in any pealed by 9 Geo. 4, c. 31, s. 1. church, &c.
are misdemeanors (y), must have three persons at least to constitute them. 1. A riot, seems to be a tumultuous disturbance of the peace by three persons, or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them, in the execution of some enterprise of a private nature ; and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people,—whether the act intended were of itself lawful or unlawful (z). 2. A rout, seems to be a disturbance of the peace by persons assembling together with an intention to do a thing which, if it be executed, will make them riotous, and actually making a motion towards the execution thereof (a). 3. An unlawful assembly, seems to consist of any meeting whatsoever of great numbers of people, with such circumstances of terror as cannot but endanger the peace, and raise fears and jealousies among the subjects of the realm (6). The punishment of such riots as (the persons assembling not amounting to twelve or more) fall not under the Riot Act before referred to, is fine and imprisonment (c); to which hard labour may, (by 3 Geo. IV. c. 114,) be superadded. The same punishment, but without this addition, attaches to the offences of routs and unlawful assemblies. [And by the statute 13 Hen. IV. c. 7, any two justices, together with the sheriff or undersheriff of the county, may come with the posse comitatus, (if need be,) and suppress any such riot, assembly, or rout; arrest the rioters; and record, upon the spot, the nature and circumstances of the whole transaction; which record alone shall be a sufficient conviction of the offenders. In the interpretation of which statute it hath been holden, that all persons,
(y) Hawk. P. C. b. 1, c. 65; 1 Russ. 288.
(z) Hawk. P. C. b. 1, c. 66, s. 1; and see Cox v. Goodday, ubi sup.; 2 Hagg. R. 139.
(a) Hawk. P. C. b. 1, c. 65, s. 8.
(b) Ib. s. 9; and see 57 Geo. 3, c. 19, s. 23.
(c) As to the Riot Act, vide sup.
[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 (d); and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable (e). So that our antient law, previous to the modern Riot Act, seems pretty well to have guarded against any violent breach of the peace; especially since any riotous assembly on a public or general account, as to redress grievances, or to pull down all inclosures, and also resisting the Royal forces if sent to keep the peace, -may amount to overt acts of treason by levying war against the sovereign (f).
VI. Nearly related to this head of riots is the misdemeanor of tumultuous petitioning ; which was carried to an enormous height, in the times preceding the grand rebellion. Wherefore by statute 13 Car. II. st. 1, c. 5, it was enacted, that not more than twenty names shall be signed to any petition to the Crown or either house of parliament for the alteration of matters established by law in Church or State: unless the contents thereof be previously approved, in the country, by three justices, or the majority of the grand jury at the assizes or quarter sessions ; and, in London, by the lord mayor, aldermen, and common council (g): and that no petition shall be delivered by a company of more than ten persons. On pain, in either case, of incurring a penalty not exceeding 1001. and three months' imprisonment(h).]
(d) See R. v. Pinney, 3 B. & Ad. the Restoration, usually taken the 946; R. v. Neale, 9 C. & P. 431; lead in petitions to parliament for R. v. Brown, 1 Car. & M. 315. the alteration of any established
(e) i Hale, P. C. 495; Hawk. P. law. C. b. 1, b. 65, s. 20.
(h) At the trial of Lord George () Vide sup. p. 157.
Gordon, it was held by the Court (9) This may be one reason, says
of Queen's Bench (see Dougl. Rep. Blackstone (vol. iv. p. 147), why 591), under the presidency of Lord the corporation of London has, since Mansfield, that this statute of