: 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 Mary made felony, but within the benefit of the clergy; and also the act indemnified the peace officers and [*143] 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 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. 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, undersheriff, 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 person, 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 (2). 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 [*144 ] 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 road, open heath, common, or down, by day or night, with (2) These provisions were, by subsequent statutes, extended to every description of mills and the works attached to them; to buildings or machinery for carrying on any kind of trade or manufacture, or for ware-housing goods or merchandize; and to houses, shops, and buildings, with the fixtures, furniture, goods, and cominodities whatsoever contained therein. And now by 7 and 8 Geo. IV. c. 30, 8, it is provided, that if any persons, riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, any church or chapel, or any chapel for the religions worship of persons dissenting from the united church of England and Ireland, duly registered, or recorded, or any house, stable, couch-house, out-house, ware-house, office, shop, mill, malt-house, hop-oast, barn or granary, or any building or erection used in carrying on any trade or manufacture, or any machinery, fixed or moveable, prepared for or employed in any manufacture, or any steamengine, or other engine for sinking, draining, or working any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such offender shall be guilty of felony, and, on conviction, shall suffer death as a felon. 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 (3). 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 without a name, or with a fictitious name, demanding money, vension, 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 (4). This offence was formerly high treason by the statute 8 Hen. V. c. 6 (5). 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 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, slucies, 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 [145] 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 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 (6), (7). The remaining offences against the public peace are merely misdemeanors, and no felonies; as, (3) The 9 G. I. c. 22, and 27 G. 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 imprisonment at the discretion of the court; the latter Act, however, is repeal ed, (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 infra, note 4), by 7 and 8 Geo. IV. c. 27. All the statutes relating to these offences are repealed and consolidated by 7 and 8 Geo. IV. c. 27, and c. 29: and by 7 and 8 G. 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. menacing demands, or threatening to accuse a party of any crime, punishable with death, transportation, or pillory, or of any other infa mous crime, to extort money, shall be guilty of felony, and, on conviction thereof, be liable, at the discretion of the court, to transpor tation for life, or not less than seven years, or imprisonment for any term not exceeding four years; and, if males, to one, two, or three public whippings, in addition to such imprisonment. S. 9 defines what shall be deemed an infamous crime. Sending a letter threatening to accuse the prosecutor of having made overtures to the prisoner to commit sodomy with him, does not threaten to charge such an infamous crime as to be within the Act. Rex v. Hickman, R. and M. C. C. 34. But see Rex v. Wagstaffe, R. and R. C. C. 398; Rex v. Paddle, Id. 484. (5) In New-York it is considered an attempt to rob, and is punishable with imprisonment not exceeding five years. (2 R. S. 678, § 58.) There are no statutes in New-York against the two offences first mentioned in this chapter. (6) By 7 and 8 Geo. IV. c. 30, amending (7) In New-York these offences are misdemeanors. (2 R. S. 695, § 30, &c.) (4) The statute now in force upon this subJect is the 7 and 8 G. IV. c. 29, by § 8 of which, persons sending letters containing 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). Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequence 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 punishmentportionably 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 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 in- [*146] dignities 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 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 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, (b) 1 Hawk. P. C. 134. (c) Ibid. 136. and consolidating all former statutes on these 63 (d) Ibid. 137. And by 14, throwing down, or otherwise destroying any turnpike-gate, or other erection, or fence, connected with, or belonging to the same, is made punishable as a misdemeanor. (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 church. yards, 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 and 6 Ed. VI. c. 4, but was previously cognizable by the spiritual courts. Ex parte Williams, 6 D. and R. 373; 4 B. and C. 313. 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 enclosures, 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 to the number of twelve, we have just now seen, The 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 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 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. 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 (h) 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 promotes, or takes part in a riot, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself 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 abolished, by 56 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 in suppressing the riot, is justifiable (j). So that our ancient law, previous to the modern riot act, 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 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 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 unusual 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 several 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 of 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: and the same may be done by in 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 provision. Dougl. 592. See the 57 Geo. III. c. 19. s. 23. for preventing public ment for the alteration of any established law. meetings, &c. near the houses of parliament, or courts of justice in Westminster. 1 |