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CHAPTER THE ELEVENTH.

OF OFFENCES AGAINST THE PUBLIC
PEACE.

WE

E are next to consider offences against the public peace ; the conservation of which is intrusted to the king and his officers, in the manner and for the reasons which were formerly mentioned at large. These offences are either such as are an actual breach of the peace; or constructively so, by tending to make others break it. Both of these species are also either felonious, or not felonious. The felonious breaches of the peace are strained up to that degree of malignity by virtue of several modern statutes: and, particularly,

1. THE riotous assembling of twelve persons, or more, and not dispersing upon proclamation. This was first made high treason by statute 3 & 4 Edw. VI. c. 5., when the king was a minor, and a change in religion to be effected: but that statute was repealed by statute 1 Mar. c.1., among the other treasons created since the 25 Edw. III.; though the prohibition was in substance re-enacted, with an inferior degree of punishment, by statute 1 Mar. st. 2. c.12., which made the same offence a single felony. These statutes specified and particularized the nature of the riots they were meant to suppress; as, for example, such as were set on foot with intention to offer violence to the privy council, or to change the laws of the kingdom, or for certain other specific purposes: in which cases, if the persons were commanded by proclamation to disperse, and they did not, it was by the statute of

a Vol. I. p. 118. 268. 350.

Mary made felony, but within the benefit of clergy; and also the act indemnified the peace officers and their assistants, if they killed any of the mob in endeavouring to suppress such riot. This was thought a necessary security in that sanguinary reign, when popery was intended to be re-established, which was likely to produce great discontents: but at first it [143] was made only for a year, and was afterwards continued for that queen's life. And, by statute 1 Eliz. c.16., when a reformation in religion was to be once more attempted, it was revived and continued during her life also; and then expired. From the accession of James the first to the death of queen Anne, it was never once thought expedient to revive it: but, in the first year of George the first, it was judged necessary, in order to support the execution of the act of settlement, to renew it, and at one stroke to make it perpetual, with large additions. For, whereas the former acts expressly defined and specified what should be accounted a riot, the statute 1 Geo. I. st. 2. c. 5. enacts, generally, that if any twelve persons are unlawfully assembled to the disturbance of the peace, and any one justice of the peace, sheriff, under-sheriff, or mayor of a town, shall think proper to command them by proclamation to disperse, if they contemn his orders and continue together for one hour afterwards, such contempt shall be felony without benefit of clergy. And farther, if the reading of the proclamation be by force opposed, or the reader be in any manner wilfully hindered from the reading of it, such opposers and hinderers are felons without benefit of clergy: and all persons to whom such proclamation ought to have been made, and knowing of such hinderance, and not dispersing, are felons without benefit of clergy. There is the like indemnifying clause, in case any of the mob be unfortunately killed in the endeavour to disperse them; being copied from the act of queen Mary. And, by a subsequent clause of the new act, if any persons, so riotously assembled, begin even before proclamation to pull down any church, chapel, meeting-house, dwelling-house, or out-houses, they shall be felons without benefit of clergy. (1)

(1) By the 8th section of the statute, no person is to be prosecuted for offences committed contrary to it, except within twelve months after the commission. The 6th section of the act makes provision for the recovery

VOL. IV.

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of

2. By statute 1 Hen. VII. c.7. unlawful hunting in any legal forest, park, or warren, not being the king's property, 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 inclosed forest or place where deer are usually kept, or in any warren for hares or conies, or in any high [144] 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. (2)

of damages done to any church, &c. by action against the hundred, or the inhabitants of a city if a county of itself. This provision was a necessary consequence of the former parts of the act, which by turning a mere trespass into a felony, of course deprived the party injured of any civil redress for the injury done to his property against those who had injured it; and therefore the action against the hundred is substituted for it. No action can therefore be maintained under this statute, unless a felony has been committed; unless the parties beginning to demolish or demolishing can be brought within the former clauses, the civil remedy subsists against them, and the hundred is not liable. In a case under this act (Lord King v. Chambers, 4 Campb. 377.), it was held that no beginning to demolish was within the act, unless there was an intention to demolish actually; and the jury were directed to find for the defendant, in a case where a mob after doing partial mischief retired voluntarily, if they believed that their original intention was to injure only and not demolish. The 57 G.3. c. 19. § 58. has therefore extended the remedy to every case where any house, shop, or other building whatever, or any part thereof, shall be destroyed, or in any manner damaged or injured, or where any fixtures thereto attached, or any furniture, goods, or commodities whatever, which shall be therein, shall be "destroyed, taken away, or damaged by the acts of any riotous or tumultuous assembly of persons, or by the act of any person engaged in, or making part of, any such assembly." See the case of Pinkney v. the Inhabitants of East Hundred, 2 Saund. 374. ed. 1824.

(2) This part of the 9 G.1., the black act, is now repealed by the 4G. 4. c. 54., and the punishment of transportation for seven years, or imprisonment with or without hard labour for any term not exceeding three years, substituted for that of death.

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 threatening (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 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 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

(3) See p. 137. n. (13). These acts were not repealed by the 50 G. 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 8 G. 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. (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 punishb 1 Hawk. P. C. c.63. § 1. c Ibid. § 11.

d 1 Hawk. P. C. c.63. § 13, 14.

(5) This statute was repealed by the 13 G.3. c. 84., which has been itself repealed by the 3 G. 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.

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