2. appearing

armed, or hunt

2. By statute 1 Hen. VII. c. 7, unlawful hunting in any

ing in disguise, legal forest, park, or warren, not being the king's property,

a felony ;

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3. sending

threatening letters, formerly

high treason,

*by night, or with painted faces, was declared to be single felony. But now by the statute 9 Geo. I. c. 22, to appear armed in any enclosed forest or place where deer are usually kept, or in any warren for hares or conies, or in any high road, open heath, common, or down, by day or night, with faces blacked or otherwise disguised, or, being so disguised, to hunt, wound, kill, or steal any deer, to rob a warren, or to steal fish, or to procure by gift or promise of reward any person to join them in such unlawful act, is felony without benefit of clergy. I mention these offences in this place, not on account of the damage thereby done to private property, but of the manner in which that damage is committed namely, with the face blacked or with other disguise, and, being armed with offensive weapons, to the breach of the public peace and the terror of his majesty's subjects.

3. Also by the same statute, 9 Geo. I. c. 22, amended by statute 27 Geo. II. c. 15, knowingly to send any letter now a felony; without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threatening, without any demand, to kill any of the king's subjects, or to fire their houses, outhouses, barns, or ricks, is made felony without benefit of clergy. This offence was formerly high treason. by the statute 8 Hen. V. c. 6 (3).

(3) The 9 Geo. I. c. 22, and 27 Geo. II. c. 15, depriving parties committing these offences of benefit of clergy, were repealed by 4 Geo. IV. c. 54, § 3, which subjected the party to transportation or imprisoment at the discretion of the court; the latter Act, however, is repealed, (except as to sending letters threatening to kill or murder, or to burn, or destroy property, and as to accessaries to such offences, and as to rescues, vide note (33), ante 136,) by 7 & 8 Geo. IV. c. 27. All the statutes relating to these offences are repealed and consolidated by 7 & 8 Geo. IV. c. 27, and c. 29; and by 7 & 8 Geo. IV. c. 29, § 26, stealing, or attempting to kill or wound

any deer, kept in any enclosed ground, is declared felony, and the guilty party is liable to be punished as in the case of simple larceny; and committing the same offence in unenclosed grounds is punishable summarily by fine not exceeding 501., and repeating such offence is deemed felony, and punishable as a simple larceny.

By sect. 27, if any venison, or snares for the taking of deer, shall be found in the possession of any suspected person, who shall not satisfactorily account for it on being taken before a justice, he is liable on conviction to a penalty not exceeding 20.; and, in case such person cannot be convicted, the justice may proceed, for the discovery of the

4. To pull down or destroy any lock, sluice, or floodgate, 4. destroying erected by authority of parliament on a navigable river, is by a felony; statute 1 Geo. II. st. 2, c. 19, made felony, punishable with transportation for seven years. By the statute 8 Geo. II. c. 20, the offence of destroying such works, or rescuing any person in custody for the same, is made felony without benefit of clergy; and it may be inquired of and tried in any adjacent county, as if the fact had been therein committed. By the statute 4 Geo. III. c. 12, maliciously to damage or destroy any banks, sluices, or other works on such navigable

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8. affrays;

two may com

mit an affray; this a misde

river, to open the floodgates, or otherwise obstruct the navigation, is again made felony, punishable with transportation for seven years. And by the statute 7 Geo. III. c. 40, *which repeals all former acts relating to turnpikes, maliciously to pull down or otherwise to destroy any turnpikegate, or fence, toll-house, or weighing-engine thereunto belonging, erected by authority of parliament, or to rescue any person in custody for the same, is made felony without benefit of clergy; and the indictment may be inquired of and tried in any adjacent county (4). The remaining offences against the public peace are merely misdemesnors, and no felonies; as,

5. Affrays, from affraier, to terrify, are the fighting of two or more persons in some public place, to the terror of his meanor; must majesty's subjects (5): for, if the fighting be in private, it is no affray but an assault (b). Affrays may be suppressed by

be done in pub

lic;

(b) 1 Hawk. P. C. 134.

(4) By 7 & 8 Geo. IV. c. 30, amending and consolidating all former statutes on these subjects, breaking or cutting down any sea bank or wall, or the bank or wall of any river, canal, or marsh, or destroying any lock, sluice, floodgate, or other work, on any navigable river or canal, is made felony, punishable with transportation for life, or not less than seven years, or with imprisonment for any term not exceeding four years, and to male offenders with one, two, or three public whippings. And cutting off, or removing, the piles for securing any sea bank or wall, or the bank or wall of any river, canal, or marsh, or doing any injury to obstruct the navigation thereof, is made felony, subject to transportation for seven years, or to imprisonment for any term not exceeding two years, and to males, one, two, or three public whippings; § 12.

And by sect. 14, throwing down, or otherwise destroying any turnpikegate, or other erection, or fence, connected with, or belonging to the same, is made punishable as a misdemeanor.

(5) Prize fights, or pugilistic combats for sums of money, come under this head of offence, and every individual present at and aiding and assisting in such a transaction, is guilty of a misdemeanor.

Persons who are present at a prize fight, and who have gone thither for the purpose of seeing the combatants strike each other, are all principals in the breach of the peace, and indictable for an assault, as well as the actual combatants, and it is not at all material which of the combatants strikes the first blow; Rex v. Perkins, 4 C. & P. 537.

All persons present countenancing a prize fight, are guilty of an offence; Rex v. Bellingham, 2 C. & P. 234. And where a prize fight is expected, the magistrates ought to cause the intended combatants to be brought before them, and compel them to enter into securities to keep the peace till the assizes or sessions, and if they refuse to enter into such securities, to commit them.

any private person present, who is justifiable in endeavouring to part the combatants, whatever consequences may ensue (c). 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; and may then perhaps also make them find sureties for the peace (d). 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: 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, though no mischief has actually ensued (e) (6). Another aggravation is, when thereby the officers 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 king's court, and the like. 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 and 6 Edw. VI. c. 4, 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 minis

[*146]

(6) If one kill another in a deliberate duel, under provocation of charges against his character and conduct how ever grievous, it is murder in him and his second; and, therefore, the bare incitement to fight, though under such provocation, is in itself a very high misdemeanor, though no consequence ensue

thereon against the peace; Rex v.
Rice, 3 East, 581. See also Rer v.
Kirwan, 2 B. & A. 462, post, 199.

An endeavour to provoke another to
commit the misdemeanor of sending a
challenge to fight a duel, is itself an
indictable misdemeanor; Rex v. Phil-
lips, 6 East, 464; 2 Smith, 550.

6. riots, routs, and unlawful assemblies; if done by three,

tration of his office during pleasure. And, if any person in such church or churchyard proceeds to smite or lay violent hands upon another, he shall be excommunicated ipso facto; or if he strikes him with a weapon, or draws any weapon with intent to strike, he shall besides excommunication, being convicted by a jury, have one of his ears cut off; or, having no ears, be branded with the letter F. in his cheek (7). Two persons may be guilty of an affray: but,

6. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is misdemeanors; when three, or more, do assemble themselves together to do an unlawful act, as to pull down enclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it (f) (8). A rout is where three

if by twelve, felonies;

(f) 3 Inst. 176.

(7) By 9 Geo. IV. c. 31, § 1, "so much of 5 & 6 Edw. VI. c. 4, entitled, "An Act against Quarrelling and Fighting in Churches and Churchyards, as relates to the punishment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike, as therein mentioned," is repealed.

It seems that brawling was not made an offence by 5 & 6 Edw. VI. c. 4, but was previously cognizable by the spiritual courts; ex-parte Williams, 6 D. & R. 373; 4 B. & C. 313.

With respect to the malicious or contemptuous disturbance of a congregation, or molestation of a minister, during the celebration of Divine service, see the statutes 1 M. c. 3, and 1 W. & M. c. 18, ante, 54. The following decision, as illustrative of the construction to be put upon those statutes, seems not unimportant. To an action of assault and false imprisonment, a constable pleaded, that the plaintiff illegally, intentionally, and irreverently made a disturbance in church, whereby the performance of Divine service was interrupted and disturbed; whereupon defendant gently laid hands on him, took him out of church, and detained

him in custody until the service was over. It appeared in evidence that the alleged distubance was in the plaintiff (an unauthorized person) having read aloud in church, between the communion service and the sermon, a notice of a vestry meeting held, that the plea was no answer to the action; for, though the constable might turn the plaintiff out of church, yet he had no right to detain him in custody; Williams v. Glenister, 4 D. & R. 217; 2 B. & C. 699.

:

Disturbing a minister, while reading the present Common Prayer, is within the 1 M. c. 3; 1 Russell, 280: and see Rex v. Cheere, 7 D. & R. 461. In an indictment under 1 W. & M. c. 18, for disturbing a dissenting congregation, it is not necessary to prove that the minister has taken the oaths prescribed by that Act. Such an indictment may, it seems, be removed by certiorari, before verdict; 5 T. R. 542. See 52 Geo. III. c. 155, § 12; ante, 54, n. (6).

(8) The assembling must be with circumstances of terror, and with intent to do some unlawful act; 1 Hawk. 514, $ 3, &c. If several meet together at a fair or wake, and a quarrel ensue,