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

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faces blacked or otherwise disguised, or (being so disguised) to hunt wound, kill, or steal any deer, lo 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 bis 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, menacing demands, or threatening to accuse depriving parties committing these offences of a party of any crime, punishable with death, benefit of clergy, were repealed by 4 Geo. IV. transportation, or pillory, or of any other infa. c. 54, ý 3, which subjected the party to trans. mous crime, to extort money, shall be guilty portation or imprisonment at the discretion of of felony, and, on conviction thereof, be lia. the court; the latter Act, however, is repeal. ble, at the discretion of the court, to transpor. ed, (except as to sending letters threatening tation for life, or not less than seven years, or to kill or murder, or to burn, or destroy pro. imprisonment for any term not exceeding four perty, and as to accessaries to such offences, years; and, if males, to one, two, or three and as to rescues, vide infra, note 4), by public whippings, in addition to such impri7 and 8 Geo. IV. c. 27.

sonment. S. 9 defines what shall be deemed relating to these offences are repealed and con- an infamous crime. solidated by 7 and 8 Geo. IV. c. 27, and c. 29 : Sending a letter threatening to accuse the and by ? and 8 G. IV. c. 29, 0 26, stealing, or prosecutor of having made overtures to the attempting to kill or wound any deer, kept in prisoner to commit sodomy with him, does not any enclosed ground, is declared felony, and ihreaten to charge such an infamous crime as the guilty party is liable to be punished as in to be within the Act. Rex v. Hickman, R. the case of simple larceny; and committing and M. C. C. 34. But see Rex v. Wagstaffe, the same offence in unenclosed grounds is R. and R. C. C. 398; Rex v. Paddle, id. 484. punishable summarily by fine not exceeding (5) In New York it is considered an attempt 501.

, and repeating such offence is deemed to rob, and is punishable with imprisonment felony, and punishable as a simple larceny. not exceeding five years. (2 R. S. 678, 0 58.)

(4) The statute now in force upon this sub. There are no statutes in New York againsi ject is the 7 and 8 G. IV. c. 29, by $ 8 of the two offences first mentioned in this chapter. which, persons sending letters containing (6) By 7 and 8 Geo. IV. c. 30, amending

(7) In New-York these offences are misdemeanors. (2 R. S. 695, Ø 30, &c.)

All the statutes

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 (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 punishment portionably increases. As where two persons coolly and deliberate y 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, () 1 Hawk. P. C. 134.

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

(c) Ibid. 136.

and consolidating all former statutes on these And by $ 14, throwing down, or otherwise subjects, breaking or cutting down any sea destroying any turnpike-gate, or other erec. bank or wall, or the bank or wall of any river, tion, or fence, connected with, or belonging canal, or marsh, or destroying any lock, sluice, to the same, is made punishable as a misdefloodgate, or other work, on any navigable ri- meanor. ver or canal, is made felony, punishable with (8) See p. 59. note 14. ante. transportation for life, or not less than seven (9) By 9 Geo. IV.c. 31, 91, “ so much of 5 years, or with imprisonment for any term not and 6 Ed. VI. c. 4, entitled, an Act against quarexceeding four years, and to male offenders relling and fighting in churches and church. with one, two, or three public whippings. yards, as relates to the punishment of persons And cutting off, or removing, the piles for se. convicted of striking with any weapon, or draw. curing any sea bank or wall, or ihe bank or ing any weapon with intent to strike, as therein wall of any river, canal, or marsh, or doing mentioned,” is repealed. ány injury to obstruct the navigation thereof, It seems that brawling was not made an ofis made felony, subject to transportation for fence by 5 and 6 ED. VI. c. 4, but was preseven years, or to imprisonment for any term viously cognizable by the spiritual courts. Es not exceeding two years, and to males, one, parte Williams, 6 D. and R. 373 ; 4 B. and C. two, or three public whippings : s. 12. 313. VOL. II.

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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 () (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 (8). 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, she capital, according to the circumstances that attend it; but, from the number of three to ele

ven, 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

l 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( 3 Inst, 176.

(A) 3 Inst. 176. (8) Bro. Abr. t. Riot, 4, 5.

(1) 1 Hawk. P. C. 159. With respect to the malicious or contemptu- if a sudden disturbance arise among persons ous disturbance of a congregation, or molesta- met together for an innocent purpose, they will tion of a minister, during the celebration of be guilty of a mere affray, though if they form divine service, see the statutes 1 M. c. 3, and parties, and engage in any violent proceed1 W. and M. c. 18, ante 54.

ings, with promises of mutnal assistance ; or (10) An assembly of a man's friends for the if they are implied with a sudden disposition defence of his person against those who threa. to demolish a house or other building, there ten to beat him if he go to such a market, &c. can be no doubt they are rioters, and will not is unlawful, for he who is in fear of such in- be excused by the propriety of their original sults must provide for his safety by demand- design. 2 Hawk. c. 65. s. 3. But though ing the surety of the peace against the persons there must be an evil intention, whether preby whom he is threatened, and not make use meditated or otherwise, the object of the riot of such violent methods which cannot but be itself may be perfectly lawful; as to obtain attended with the danger of raising, tumults entry into lands to which one of the parties and disorders, to the disturbance of the public has a rightful claim, for the law will not, as peace. But an assembly of a man's friends we have before seen, ante, 3 book, 5. n. 4. at his own house for the defence of the pos. suffer private individuals to disturb the peace, session of it against such as threaten to make by obtaining that redress by force, which the an unlawful entry, or for the defence of his law would regularly award him. 2 Hawk. c. person against such as threaten to beat him in 65. s. 7. 8 T. R. 357. 364. his house, is permitted by law, for a man's Women are punishable as rioters, but in. house is looked upon as his castle. He is not, fants under the age of discretion are not. however, to arm himself and assemble his Hawk. c. 65. s. 44.° In a riot all are principals, friends in defence of his close. 1 Russ. 362. and therefore if any person encourages or pro

(11) To constitute a riot, the parties must motes, or takes part in a riot, whether' by act without any authority to give colour to words, signs, or gestures, or by wearing the their proceedings, for a sheriff, constable, or badge or ensign of the rioters, he is himself even a private individual, are not only permit- to be considered a rioter. 2 Camp. 370. ted, but enjoined to raise a number of people (12) By the 3 Geo. IV. c. 144. hard labour to suppress rioters, &c. 2 Hawk. c. 65. s. 2. may be imposed. The intention also with which the parties as- (13) But now the pillory is abolished, by 56 semble, or at least act, must be unlawful, for 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 (;). 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 1001. and [*148] three months' imprisonment (14).

8. An eighth offence against the public peace is that of a forcible entry or detainer ; which is com:nitted 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 (?). 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. () I Hal. P. C. 495. Ibid. 161.