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3. Also by the same statute 9 Geo. I. c: 22., amended by statute 27 Geo. II. c.15., knowingly to send any letter without a name, or with a fictitious name, demanding money, venison, or any other valuable thing, or threateniug (without any demand) to kill any of the king's subjects, or to fire their houses, out-houses, barns, or ricks, is made felony without benefit of clergy. This offence was formerly high treason by the statute 8 Hen. VI. c.6. (3)
4. To pull down or destroy any lock, sluice, or floodgate, erected by authority of parliament on a navigable river, is by statute i 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 enquired of and tried in any adjacent county, as if the fact had been therein committed. (4) By the statute 4 Geo. III. c.12. maliciously to damage or destroy any banks, sluices, or other works on such navigable 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 destroy any turnpike-gate or fence, toll-house, or weighing-engine thereunto belonging, erected by authority of [ 145 ] parliament, or to rescue any person in custody for the same, is made felony without benefit of clergy; and the indictment
0. III.ansportati bavigation to
(3) See p. 137. n. (15). These acts were not repealed by the 30G. 2. c. 24., though that was a subsequent statute, made upon the same general subject matter, and imposing a lighter punishment; for many important distinctions were taken upon the wording of the statutes. See 2 East, P.C. c. xxiii. s.3. But all these are now as to these offences repealed by the 4 G. 4. C. 54., which, whether the letter or writing be with or without a name, or with a fictitious one, but sent or delivered for any of the purposes mentioned in the text, punishes the offence in the manner stated at p. 137. n.(13).
(4) These statutes were suffered to expire; but, after several temporary revivals, were made perpetual by the 27 G.2.c. 16. The capital part of the 8G.2. c. 20. s. 1. stands, however, now repealed by the 1 G.4. c. 115., and the punishment of transportation for life, or any term of years not less than seven, or imprisonment with or without hard labour for any term not exceeding seven, substituted for it.
may be inquired of and tried in any adjacent county.(5) 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 majesty's subjects : for, if the fighting be in private, it is no affray but an assault b. (6) Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence may ensue. (7) 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". (8) The punish
o 1 Hawk. P.C. c.63. $ 1. di Hawk. P.C. c.63. § 13, 14.
(5) This statute was repealed by the 136.3. c. 84., which has been itself repealed by the 3G.4. c. 126. By the 128th section of this last act, the offences mentioned in the text are made felony, punishable by transportation for seven years, or, in mitigation thereof, such other punishment as the court may direct, as in cases of petty larceny. But I do not find in this last act the same provision for the trial of the offence in any county.
(6) It seems certain, that in some cases there may be an affray where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people. Hawkins, P. C. b. i. c. 63. $4.
(7) A person so interposing" is in the discharge of a duty which the law requireth of him. The law is his warrant, and he may not improperly be considered as a person engaged in the public service, and for the advancement of justice, though not specially appointed to it; and upon that account he is under the same protection as the ordinary ministers of justice are.” But then in order to entitle himself to it, he must“ undoubtedly give express notice of his friendly intent.” Foster, 309, 311.
(8) This must be understood of an affray about to commence, or actually going on, for the constable has no authority to punish for an affray committed and ended; still it seems that he may carry before a justice those who have been arrested by such as were present at an affray, and delivered by them into his hands. Hawkins, P.C.b.i. c. 63. $ 17. A justice of the peace has all the power which an individual or a constable has in the suppression of an affray; and where it has passed out of his presence, he may besides issue his warrant to bring the offenders before him, in order to compel them to find sureties of the peace, Ibid. $ 18.
ment 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 ensuede. Another aggravation is, when thereby the officers of [ 146 ] 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 church-yard 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. that if any person shall, by words only, quarrel, chide, or brawl, in a church or church-yard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiae ; and, if a clerk in orders, from the ministration 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. (9) Two persons may be guilty of an affray: but,
e i Hawk. P.C. c.63. $ 21.
(9) This statute was made to repress the disturbances that in the early ages of the reformation were too apt to arise between the professors of different religions. It has since been applied further to repress quarrel's and offences violating the sacred character of churches and church-yards. Cor v. Good-day, 2 Haggard's R. 139. In this case the charge against a clergyman was for addressing a public reproof to a parishioner during his sermon, without any just cause or provocation, and with great warmth and passion, and with a loud voice. Lord Stowell held that this amounted to brawling; and observed in passing sentence, that "the duty of maintaining order and decorum lies immediately upon the churchwardens; the officiating minister has other duties to perform, those of performing divine service.
6. Riots, routs, and unlawful assemblies, must have three persons at least to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down inclosures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it'. A rout is where three or more meet to do an unlawful act upon a common quarrel, as forcibly breaking down fences upon a right claimed of common or of way; and make some advances towards it s. A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel ": as if they beat a man; or hunt and kill game in another's park, chase, warren, or liberty; or do any other unlawful act with force and violence; or even do a lawful act, as removing
a nusance, in a violent and tumultuous manner. The pu( 147 ) nishment of unlawful assemblies, if to the number of twelve,
we have just now seen, may be capital, according to the circumstances that attend it; but, from the number of three to eleven, is by fine and imprisonment only. The same is the case in riots and routs by the common law; to which the pillory in very enormous cases has been sometimes superadded. And by the statute 13 Hen. IV. c. 7. any two justices, together with the sheriff or under-sheriff 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, 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; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable'. So that our antient law, pre
f 3 Inst. 176.
i i Hawk. P.C. c. 65. $ 12.
j 1 Hal. P.C. 495. i Hawk. P.C. c.65. § 20.
In saying this, I do not mean to say that occasions may not occur in which it may not be justifiable, and even unavoidable, for him to take a part in suppressing any disorder or interruption in the church.” Ibid. 141.
vious to the modern riot-act, seems pretty well to have guarded against any violent breach of the public peace; especially as any riotous assembly on a public or general account, as to redress grievances or pull down all inclosures, 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. (10)
7. NEARLY related to this head of riots is the offence 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 is enacted, that not more than twenty names shall be signed to any petition to the king or either house of parliament, for any 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 TM, and that no petition shall be de- | 148 1 livered by a company of more than ten persons; on pain in either case of incurring a penalty not exceeding 1001. and three months' imprisonment. (11)
* This may be one reason (among taken the lead in petitions to parliaothers) why the corporation of Lon- ment for the alteration of any estadon has, since the restoration, usually blished law.
(10) It is to be understood also, that at common law every sheriff, undersheriff, and also every other peace officer, as constables, &c., may and ought to do all that in them lies towards the suppressing of a riot, and may command all other persons whatsoever to assist them therein. Also, it is certain that any private person may lawfully endeavour to appease all such disturbances, by staying those whom he shall see engaged therein from executing their purpose, and also by stopping others whom he shall see coming to join them; for if private persons may do thus much, as it is most certain that they may, towards the suppressing of a common affray, surely à fortiori they may do it towards the suppressing of a riot. i Hawk. P.C. c. 65.811.
(11) In the trial of Lord George Gordon, it was contended that the article of the bill of rights, which declares that it is the right of the subject to petition the king, and that all commitments and prosecutions for such petitioning are illegal, had virtually repealed this statute. This, however, was denied by Lord Mansfield in the name of the court. Douglas, 592.