Affidavits in punishment. &c. where such offender shall be indicted for any second offence, and is to be sufficient proof of the conviction of such offender. (a) By this statute, in all cases in which any verdict or judgment by default shall be had against any person for publishing any blasphemous or seditious libel, the Judge or court may make an order for the seizure and carrying away and detaining all copies of the libel in the possession of the party, or of any other person named in the order for his use. (b) If a libel imputes to a man a triable offence, affidavits of its mitigation of truth cannot be given in evidence in mitigation of punishment. But if a libel imports to be founded on certain newspaper reports, affidavits of the existence of such newspaper reports are admissible: and in such case affidavits of the falsehood of such reports cannot be received in aggravation. A libel imported to be founded on certain newspaper reports, and upon the foundation of those reports charged certain troops with acts of murder: after conviction the defendant offered affidavits that the newspapers did contain those reports, and also other affidavits that the facts were true. The former affidavits were received, because they explained the situation in which the defendant stood at the time he wrote the libel, and shewed the impression under which he wrote: but the latter were rejected, because the receiving them might deprive of a fair trial persons who might afterwards be tried for the murders; and if murders were committed, the proper course was to prosecute and bring to a fair trial, not to libel and create an unfair prejudice.(g) (a) S. 7. (b) See s. 1, 2. and also s. 3. as to Scotland. S. 8 and 9. provide for the Jimitation of actions brought for any thing done in the execution of the act. By s. 10. the punishment of persons convicted of libel in Scotland is not to be altered. (q) Rex v. Burdett, 4 B. and A. 314. CHAPTER THE TWENTY-FIFTH. OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES. THE distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute. (a) These offences may be treated of more at large in the order in which they have been mentioned. I. A riot is described to be a tumultuous disturbance of the Of a riot. 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 enterprize 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. (b) In some cases, in which the law authorizes force, it is not only lawful, but also commendable, to make use of it; as for a sheriff or constable, or perhaps even for a private person, to assemble a competent number of people in order with force to suppress rebels, or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause to (a) 1 Hawk. P. C. c. 65. s. 1, 8, 9. 3 Inst. 176. 4 Blac. Com. 146. (b) 1 Hawk. P. C. c. 65. s. 1. Three persons or more is the correct description of the number of persons necessary to constitute a riotous meeting; but it should be observed, that in Hawkins (c. 65. s. 2, 5, 7.) the words "more than three persons" are three times over inserted instead of "three "persons or more;" which in 5 Burn. Just. Riot, S. 1. is remarked as an instance that, in a variety of matter, it is impossible for the mind of man to be always equally attentive. The description of riot stated in the text, and taken from the work of Mr. Serjeant Hawkins, is submitted as that which Where the force, an as not be riotous. How far the fear a violent resistance, to raise the posse, in order to remove a force in making an entry into, or detaining of, lands. Also it seems to be the duty of a sheriff, or other minister of justice, having the execution of the king's writs, and being resisted in endeavouring to execute them, to raise such a power as may effectually enable them to overpower any such resistance; yet it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resistance; and it is certain that they are highly punishable for using any needless outrage or violence. (c) It seems to be agreed, that the injury or grievance complained object must be of, and intended to be revenged or remedied by a riotous assembly, must relate to some private quarrel only; as the inclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. For the proceedings of a riotous assembly on a public or general account, as to redress grievances, pull down all inclosures, or to reform religion, and also resisting the king's forces, if sent to keep the peace, may amount to overt acts of high treason by levying war against the king. (d) of a private nature. As to the degree of violence or terror. It seems to be clearly agreed, that in every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people; as the shew of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi. (e) But it is not necessary, in order to constitute this crime, that personal violence should have been committed. (f) Upon these principles, assemblies at wakes, or other festival times, or meetings for the exercise of common sports or diversions, as bull-baiting, wrestling, and such like, are not riotous. (g) And upon the same ground also it seems to follow that it is possible for three persons or more to assemble together with an intention to execute a wrongful act, and also actually to perform their intended enterprize, without being rioters; as if a man assemble a number of persons to carry away a piece of timber or other thing to which he claims a right, and which cannot be carried away without a number of persons, this will not of itself be a riot, if the number of (c) 1 Hawk. P. C. c. 65. s. 2. Vin. Abr. Riots, &c. (A) 4. 19 the town of Kingston; and the second, for a common nuisance in kicking (d) 4 Blac. Com. 147. 1 Hawk. P. about a foot-ball in the said town. C. c. 65. s. 6. (e) 1 Hawk. P. C. c. 65. s. 5. (g) 1 Hawk. P. C. c. 65. s. 5. But And in Sir Anthony Ashley's case, 1 Roll. R. 109. Coke, C. J. said, that the stage-players might be indicted for a riot and unlawful assembly: and see Dalt. Just. c. 136. (citing Roll. R.) that if such players by their shews occasion an extraordinary and unusual concourse of people to see them act their tricks, this is an unlawful assembly and riot, for which they may be indicted and fined. 19 Vin. Abr. Riots, &c. (A) 8. persons are not more than are necessary for the purpose; and if there are no threatening words used, nor any other disturbance of the peace; even though another man has better right to the thing carried away, and the act therefore is wrong and unlawful. (h) Much more may any person, in a peaceable manner, assemble a fit number of persons to do any lawful thing; as to remove any common nuisance, or any nuisance to his own house or land. And he may do this before any prejudice is received from the nuisance, and may also enter into another man's ground for the purpose. Thus where, a man having erected a wear across a common navigable river, divers persons assembled with spades and other instruments necessary for removing it, and dug a trench in the land of the man who made the wear in order to turn the water and the better to remove it, and thus removed the nuisance, it was holden not to be a forcible entry nor a riot. (¿) The legality or the act intend if there be violence and But if there be violence and tumult, it has been generally holden not to make any difference whether the act intended to be done by the persons assembled be of itself lawful or unlawful; from whence it follows that if three or more persons assist a man to make a forcible entry into lands to which one of them has a good right of entry; or if the like number, in a violent and tumul- tumult. tuous manner, join together in removing a nuisance or other thing, which may be lawfully done in a peaceable manner, they are as properly rioters as if the act intended to be done by them were ever so unlawful. (k) And if in removing a nuisance the persons assembled use any threatening words, (such as, they will do it though they die for it, or the like,) or in any other way behave in apparent disturbance of the peace, it seems to be a riot. (/) tumult must But the violence and tumult must in some degree be pre- How far the meditated. For if a number of persons, being met together at a violence and fair, market, or any other lawful or innocent occasion, happen on be premedia sudden quarrel to fall together by the ears, it seems to be agreed tated. that they are not guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention. (m) But if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous. As where it was held that although the audience in a public theatre have a right to express (i) Dalt. c. 137. 5 Burn. Riot, s. 1. () 1 Hawk. P. C. c. 65. s. 7. The law will not suffer persons to seek redress of their private grievances by such dangerous disturbances of the public peace; but the justice of the quarrel in which such an assembly may have been engaged will be considered as a great mitigation of the offence. And Per Cur. in 12 Mod. 648. Anon., if one goes to assert his right with force and violence, he may be guilty of a riot. (1) Dalt. c. 137. 5 Burn. Just. Riot, s. 1. where it is said, that if there is cause to remove any such nuisance, or to do any like act, it is safest not to assemble any multitude of people, but only to send one or two persons, or if a greater number, yet no more than are needful, and only with meet tools, in order to remove it; and that such persons tend their business only, without disturbance of the peace, or threatening speeches. (m) 1 Hawk. P. C. c. 65. s. 3. Though the parties assembled in the first instance for an inno they may afterwards be guilty of a riot. the feelings excited at the moment by the performance, and in this manner to applaud or to hiss any piece which is represented, or any performer who exhibits himself on the stage; yet if a number of persons, having come to the theatre with a predetermined purpose of interrupting the performance, for this purpose make a great noise and disturbance, so as to render the actors entirely inaudible, though without offering personal violence to any individual, or doing any injury to the house, they are guilty of a riot. (n) Even though the parties may have assembled for an innocent purpose in the first instance, yet if they afterwards, upon a dispute happening to arise amongst them, form themselves into parties, with promises of mutual assistance, and then make an cent purpose, affray, it is said that they are guilty of a riot, because upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming had been on such a design; and it seems to be clear that if, in an assembly of persons met together on any lawful occasion whatsoever, a sudden proposal should be started of going together in a body to pull down a house, or inclosure, or to do any other act of violence, to the disturbance of the public peace, and such motion be agreed to, and executed accordingly, the persons concerned cannot but be rioters; because their associating themselves together, for such a new purpose, is in no way extenuated by their having met at first upon another. (0) Any person taking part in a riot is a rioter; all are principals. If any person, seeing others actually engaged in a riot, joins himself to them and assists them therein, he is as much a rioter as if he had at first assembled with them for the same purpose, inasmuch as he has no pretence that he came innocently into the company, but appears to have joined himself to them with an intention of seconding them in the execution of their unlawful enterprize and it would be endless, as well as superfluous, to examine whether every particular person engaged in a riot were in truth one of the first assembly, or actually had a previous knowledge of the design. (p) And the law is that if any person encourages, or promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter; for in this case all are principals. (9) It has been ruled, however, that if three or more, being lawfully assembled, quarrel, and the party fall on one of their own company, this is no riot; but that if it be on a stranger, the very moment the quarrel begins, they begin to be an unlawful assembly, and their concurrence is evidence of an evil intention in them that concur, so that it is a riot in them that act, and in no more. (r) The inciting persons to assemble in a riotous manner appears also to have been considered as an indictable offence. (s) |