5. Affrays (from affraier, to terrify) are the fighting of two or more per sons 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). Affrays may be suppressed by any private person present, who is justifiable in endea vouring to part the combatants, whatever consequence may ensue (c). But more especially the constable, or other similar officer, however denomi nated, 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). 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 regulat● 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 in- [*146] dignities to him to whose service those places are consecrated. Therefore mere quarrelsome words, which are neither an affray nor an of fence 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 church-yard proceeds to smite or lay violent hands upon another (8), 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 excommuni. cation (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,

(b) 1 Hawk. P C. 134. (c) Ibid. 136.

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 ri-
ver 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 se-
curing 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,
wo, or three public whippings: s. 12.
VOL. II.

63

(d) Ibid. 137.
(e) Ibid. 138.

And by 14, throwing down, or otherwise destroying any turnpike-gate, or other erec tion, or fence, connected with, or belonging to the same, is made punishable as a misde

meanor.

(8) See p. 59. note 14. ante.

(9) By 9 Geo. IV. c. 31, § 1, "so much of 5 and 6 Ed. VI. c. 4, entitled, an Act against quarrelling and fighting in churches and churcnyards, 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 tha brawling was not made an of fence by 5 and 6 Ed. VI. c. 4, but was pre viously cognizable by the spiritual courts. Ea parte Williams, 6 D and R. 373; 4 B and C

313.

6. Riets, routs, at d unlawful assemblies, must have three persons at leas to constitute them. An unlawful assembly is when three or more do assemble themselves together to do an unlawful act, as to pull down enclo sures, to destroy a warren or the game therein; and part without doing it, or making any motion towards it (ƒ) (10). 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 (g). A riot is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel (h) 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 nuisance, in a violent and tumultuous manner (11). The punishment of unlawful assemblies, if tc 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 (12). The same is the case [147] in riots and routs by the common law; to *which the pillory in

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very enormous cases has been sometimes superadded (i) (13). 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 suppress

(f) 3 Inst. 176.

(g) Bro. Abr. t. Riot, 4, 5.

With respect to the malicious or contemptuus 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. and M. c. 18, ante 54.

(10) An assembly of a man's friends for the defence of his person against those who threaten to beat him if he go to such a market. &c. is unlawful, for he who is in fear of such insults must provide for his safety by demanding the surety of the peace against the persons by whom he is threatened, and not make use of such violent methods which cannot but be attended with the danger of raising tumults and disorders, to the disturbance of the public peace. But an assembly of a man's friends at his own house for the defence of the possession of it against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is permitted by law, for a man's house is looked upon as his castle. He is not, however, to arm himself and assemble his friends in defence of his close. 1 Russ. 362.

(11) To constitute a riot, the parties must act without any authority to give colour to their proceedings, for a sheriff, constable, or even a private individual, are not only permitted, but enjoined to raise a number of people to suppress rioters, &c. 2 Hawk. c. 65. s. 2. The intention also with which the parties assemble, or at least act, must be unlawful, for

(A) 3 Inst. 176.

(i) 1 Hawk. P. C. 159.

if a sudden disturbance arise among persons met together for an innocent purpose, they will be guilty of a mere affray, though if they form parties, and engage in any violent proceedings, with promises of mutual assistance; or if they are implied with a sudden disposition to demolish a house or other building, there can be no doubt they are rioters, and will not be excused by the propriety of their original design. 2 Hawk. c. 65. s. 3. But though there must be an evil intention, whether premeditated or otherwise, the object of the riot itself may be perfectly lawful; as to obtain entry into lands to which one of the parties has a rightful claim, for the law will not, as we have before seen, ante, 3 book. 5. n. 4. suffer private individuals to disturb the peace, by obtaining that redress by force, which the law would regularly award him. 2 Hawk. c. 65. s. 7. 8 T. R. 357. 364.

Women are punishable as rioters, but infants under the age of discretion are not. 1 Hawk. c. 65. s. 44. In a riot all are principals and therefore if any person encourages or pro motes, or takes part in a riot, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himsel: to be considered a rioter. 2 Camp. 370.

(12) By the 3 Geo. IV. c. 144. hard labour may be imposed.

(13) But now the pillory is abo ished, by 54 Geo, III. c. 138

ing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen ir suppressing the riot. is justifiable (j). So that our ancient law, previous to the modern riot ac., seems pretty well to have guarded against 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 enclosures, 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.

7. Nearly related to this head of riots is the offence of tumultuous petitoning; 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 assises or quarter-sessions; and, in London, by the lord mayor, aldermen, and common council (k), 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 100l. and [*148] three months' imprisonment (14).

8. An eighth offence against the public peace is that of a forcible entry or detainer; which is committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without the authority of law. This was formerly allowable to every person disseised, or turned out of possession, unless his entry was taken away or barred by his own neglect, or other circumstances; which were explained more at large in a former book (1). But this being found very prejudicial to the public peace, it was thought necessary by several statutes to restrain all persons from the use of such violent methods, even of doing themselves justice; and much more if they have no justice in their claim (m). So that the entry now allowed by law is a peaceable one; that forbidden is such as is carried on and maintained with force, with violence, and unusuai weapons. By the statute 5 Ric. II. st. 1. c. 8. all forcible entries are punished with imprisonment and ransom at the king's will. And by the se-. veral statutes of 15 Ric. II. c. 2, 8 Hen. VI. c. 9, 31 Eliz. c. 11, and 21 Jac. I. c. 15, upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, one or more justices o the peace, taking sufficient power of the county, may go to the place, and there record the force upon his own view, as in case of riots; and upon such conviction may commit the offender to gaol, till he makes fine and ransom to the king. And moreover the justice or justices have power to summon a jury to try the forcible entry or detainer complained of: and, if the same be found by that jury, then, besides the fine on the offender, the justices shall make restitution by the sheriff of the possession, without inquiring into the merits of the title for the force is the only thing to be tried, punished, and remedied by them:

(j) 1 Hal. P. C. 495. Ibid. 161.

(k) This may be one reason (among others) why the corporation of London has, since the Restoration, usually taken the lead in petitions to parlia

(14) The bill of rights does not virtually repeal this provisior. Dougl. 592. See the Ge I. c. 19 s. 23. for preventing public

and the same may be done by in

ment for the alteration of any established law
(1) See book III. page 174, &c
(m) 1 Hawk. P. Č. 141.

meetings, &c. near the houses of parliament or courts of justice in Westminster.

dictment at the general sessions. But this provision does not extend to such as endeavour to maintain possession by force, where they [*149] *themselves, or their ancestors, have been in the peaceable enjoy. ment of the lands and tenements, for three years immediately preceding (n) (15).

9. The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Nor thampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and im prisonment during the king's pleasure: in like manner, as by the laws of Solon, every Athenian was finable who walked about the city in ar mour (o).

10. Spreading false news, to make discord between the king and nobi lity, or concerning any great man of the realm, is punishable by common law (p) with fine and imprisonment; which is confirmed by statutes Westm. 1.3 Edw. I. c. 34, 2 Ric. II. st. 1. c. 5, and 12 Ric. II. c. 11

11. False and pretended prophecies, with intent to disturb the peace, are equally unlawful, and more penal; as they raise enthusiastic jealousies in the people, and terrify them with imaginary fears. They are therefore punished by our law, upon the same principle that spreading of public news of any kind, without communicating it first to the magistrate, was prohibited by the ancient Gauls (9). Such false and pretended prophecies were punished capitally by statute 1 Edw. VI. c. 12. which was repealed in the reign of queen Mary. And now by the statute 5 Eliz. c. 15. the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

[*150] *12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence (r) (16), (17). If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender by statute 9 Ann. c. 14. shall forfeit all his goods to the crown, and suffer two years' imprisonment (18).

(n) Holding over by force, where the tenant's title was under a lease, now expired, is said to be a forcible detainer. (Cro. Jac. 199.)

(0) Pott. Antiq. b. 1, c. 26. (p) 2 Inst. 226. 3 Inst. 198. (q) Habent legibus sanctum, si quis quid de republia finitimis rumore aut fama acceperit, uti

:

(15) See 2 R. S. 338, 4 and 507, &c. (16) Ir New-York this offence is punishable with imprisonment not exceeding seven years, (2 R. S. 686, 2.) and to fight a duel with a deadly weapon, though death do not ensue, is punishable with imprisonment for 10 years. (Id. § 1.) Posting, or writing, or printing any reproachful or contemptuous language for not fighting a duel, is a misdemeanor. (2 R. S. 674, 20.)

(17) The offences of fighting duels, and sending or provoking challenges, are fully Bonsidered by Mr. J. Grose, in passing sentence on Rice, convicted on a criminal information for a misdemeanor of the latter kind, 3 East, 581, where the opinions of the earlier writers are collected. It is an offence though

ad magistratum deferal, neve cum alio communicet : quod saepe homines temerarios atque imperitos fab sis rumoribus terreri, et ad facinus impelli, et da summis rebus consilium capere cognitum est." Cas de bell. Gall. lib. 6, cap. 19.

(r) 1 Hawk. P. C. 135. 138.

the provocation to fight do not sur ceed, 6 Eası,
464. 2 Smith, 550; and it is a misdemeanor
merely to endeavour to provoke another to
send a challenge. 6 East, 464. But mere
words which, though they may produce a chal
lenge, do not directly tend to that issue, as
calling a man a liar, or knave, are not neces
sarily criminal, 2 Lord Raym. 1031. 6 East,
471, though it is probable they would be so if
it could be shewn that they were meant to pro-
voke a challenge. A challenge is one of
those offences for which a criminal informa
tion will be granted by the court of K. B.,
though this will not be done where the party
applying has himself first incited the proposai
1 Burr. 316.

(18) The words of Lord Mansfie.d the

13. Of a nature very similar to challenges are libels, libelli famosi, which taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (s) (19). The direct tendency of

(3) 1 Hawk. P. C. 193.