A warrant of a justice to apprehend a party, founded on a certificate of the clerk of the peace, that an indictment for a misdemeanor had been found against such party, is good; and therefore if upon such warrant the party be arrested, and afterwards rescued, those who are guilty of the rescue may be convicted of a misdemeanor. Stokes's case, 5 C. and P. 148 (a).

Proof of the rescue.] The word rescue, or some word equivalent thereto, must appear in the indictment, and the allegation must be proved by showing that the act was done forcibly, and against the will of the officer who had the party rescued in custody. Burridge's case, 3 P. Wms. 483. In order to render the offence of rescue complete, the prisoner must actually get out of the prison. Hawk. P. C. b. 2, c. 18, s. 12.

Punishment.] The offence of rescuing a person in custody for felony was formerly punishable as a felony within clergy at common law. Stanley's case, Russ. and Ry. 432. But now, by the 1 and 2 Geo. 4, c. 88, s. 1, "if any person shall rescue, or aid and assist in rescuing, from the lawful custody of any constable, officer, headborough, or other person whomsoever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then if the person or persons so offending shall be convicted of felony, and entitled to the benefit of clergy, and be liable to be imprisoned for any term not exceeding one year, it shall be lawful for the court by or before whom any such person or persons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of being so fined and imprisoned as aforesaid, shall be transported beyond the seas for seven years, or be imprisoned only, or be imprisoned and kept to hard labor in the common gaol, house of correction, or penitentiary house, for any term not less than one and not exceeding three years."

Aiding a prisoner to escape.] Under the head of rescue may be classed the analogous offence of aiding a prisoner to escape. This, as an obstruction of the course of justice, was an offence at common law, being a felony where the prisoner was in custody on a charge of felony, and a misdemeanor in other cases. See Burridge's case, 3 P. Wms. 439.

Aiding a prisoner to escape-offence under various statutes.] The offence of assisting a prisoner to escape has, by various statutes, been subjected to different degrees of punishment.

By the 25 Geo. 2, c. 27, s. 9, if any person or persons whatsoever shall by force set at liberty, or rescue, or attempt to rescue, or set at liberty, any person out of prison who shall be committed *for, or found [817] guilty of murder, or rescue, or attempt to rescue any person convicted of murder, going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony, [and shall suffer death without benefit of clergy.]

Now, by the 7 Wm. 4 and 1 Vict. c. 91, the punishment of death. is abolished, and parties guilty of the offences mentioned in the above sec

(a) Eng. Com. L. Rep. xxxiv. 249

tion, are liable to be transported for life, or for not less than fifteen years, or to be imprisoned for any term not exceeding three years.

By 4 Geo. 4, c. 64, s. 43, the conveying any disguise or instruments into any prison with intent to aid or assist a prisoner to escape is made a felony, punishable by transportation for fourteen years. And the assisting any prisoner in attempting to make his escape from any prison, is subject to the same punishment. See ante, p. 796. Similar provisions are contained in the 16 Geo. 2, c. 31, with respect to the King's Bench and Fleet prisons, and the other prisons not comprised in the 4 Geo. 4, c. 64. Upon the 16 Geo. 2, c. 31, it has been held, that the act is confined to cases of prisoners committed for felony, expressed in the warrant of commitment or detainer, and therefore a commitment on suspicion only is not within the act. Walker's case, 1 Leach, 97; Greeniff's case, 1 Leach, 363. It was likewise held on the construction of this statute, that it does not extend to a case where the escape has been actually effected, but only to the attempt. Tilley's case, 2 Leach, 662. The delivering the instrument is an offence within the act, though the prisoner has been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted, though there is no evidence that he knew of the specific offence of which the prisoner he assisted had been convicted. Shaw's case, Russ. and Ry. 526 (a).

Where the record of the conviction of the person aided is set forth, and is produced by the proper officer, no evidence is admissible to contradict that record. Shaw's case, Russ. and Ry. 526 (b).

By the 52 Geo. 3, c. 156, aiding and assisting prisoners of war to escape is felony, punishable with transportation for life, or fourteen or seven years. See Martin's case, R. and R. 196 (c).

As to aiding and assisting persons convicted by a military or naval court martial to escape, see the 6 Geo. 4, c. 5, s. 13; 6 Geo. 4, c. 6, s. 14. As to rescuing returned transports, see post, p. 870.

[ *818] *RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

Proof of riot-nature of in general.] A riot is defined by Hawkins to be a tumultuous disturbance of the peace, by three persons or more,

(a) 1 Eng. C. C. 526. (b) Id. 526. (c) Id. 196.

assembling together of their own authority, with an intent mutually to assist one another, against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful (1). Hawk. P. C. b. 1, c. 65, s. 1.

The indictment for a riot must conclude in terrorem populi. Hughes's case, 4 C. and P. 373 (a).

The punishment for a riot is fine or imprisonment or both, and by the 3 Geo. 4, c. 114, the imprisonment may be with hard labor.

Proof of the unlawful assembling.] An unlawful assembling must be proved, and, therefore, if a number of persons, met together at a fair, suddenly quarrel, it is an affray, and not a riot, ante, p. 243; but if, being so assembled, on a dispute occurring, they form into parties, with promises of mutual assistance, and then make an affray, it will be a riot; and, in this manner, any lawful assembly may be converted into a riot: so a person, joining rioters, is equally guilty, as if he had joined them while assembling. Hawk. P. C. b. 1, c. 65, s. 3.

Proof of the violence or terror.] Evidence must be given of some circumstances of such actual force or violence, or, at least, of such apparent tendency thereto, as are calculated to strike terror into the public; as a show of arms, threatening speeches, or turbulent gestures. Hawk. P. C. b. 1, c. 65, s. 5. But it is not necessary that personal violence should be done or offered. Thus, if a number of persons come to a theatre, and make a great noise and disturbance, with the predetermined purpose of preventing the performance, it *will be a riot, though [ *819 ] no personal violence is done to any individual, and no injury done to the house. Clifford v. Brandon, 2 Campb. 358. But the unlawfulness of the object of an assembly, even though they actually carry their unlawful object into execution, does not constitute a riot, unless accompanied by circumstances of force or violence; and in the same manner, three or more persons assembling together, peaceably, to do an unlawful act is not a riot. Hawk. P. C. b. 1, c. 65, s. 5.

In some cases in which the law authorizes force, the use of such force will not constitute a riot, as where a sheriff or constable, or perhaps even a private person assembles a competent number of persons, in order with force to suppress rebels, or enemies, or rioters. Hawk. P. C. b. 1, c. 65, s. 2. So a private individual may assemble a number of others to suppress a common nuisance, or a nuisance to his own land. Thus where a weir had been erected across a common navigable river, and a number of persons, assembled, with spades and other necessary instruments, for removing it, and did remove it, it was held to be neither a forcible entry nor a riot. Dalt. c. 137. So an assembly of a man's friends at his own house, for the defence of his person, or the possession of his house, against such as threaten to beat him, or to make an unlawful entry, is excusable. Burn, 278.

5

(1) State v. Brook & al., 1 Hill, 362.

(a) Eng. Com. L. Rep. xix. 425.

Proof of the object of the rioters-private grievance.] It must appear that the injury or grievance complained of, relates to some private quarrel only, as the inclosing of lands in which the inhabitants of a certain town claim a right of common, for where the intention of the assembly is to redress public grievances, as to pull down all the inclosures in general, an attempt with force to execute such intention, will amount to high treason. Hawk. P. C. b. 1. c. 65, s. 6. Where the object of an insurrection, says Mr. East, is a matter of a private or local nature, affecting, or supposed to affect, only the parties assembled, or confined to particular persons or districts, it will not amount to high treason, although attended with the circumstances of military. parade usually alleged in indictments on this branch of treason. As if the rising be only against a particular market, or to destroy particular inclosures, (see Birt's case, 5 C. and P. 154 (a)), to remove a local nuisance, to release a particular prisoner, (unless imprisoned for high treason,) or even to oppose the execution of an act of parliament, if it only affect the district of the insurgents, as in the case of a turnpike act. 1 East, C. P. 75.

Proof of the execution of the act for which the rioters are assembled.] The act for the purpose of executing which the rioters are assembled must be proved, otherwise the defendants must be acquitted. Where persons assemble together for the purpose of doing an act, and the assembly is such as hereinbefore described, if they do not proceed to execute their purpose, it is but an unlawful assembly, not a riot; if after so assembling, [*820] they proceed to execute the act for *which they assembled, but do not execute it, it is termed a rout; but if they not only so assemble but proceed to execute their design, and actually execute it, it is then a riot; 1 Hawk. c. 65, s. 1; Dalt. c. 136; Birt's case, 5 C. and P. 154 (b).

Proof of the guilt of the defendants.] In proving the participation of the defendants in the riot, it is not, as it seems, competent to the prosecutor to prove a riot in the first instance, and afterwards to connect the prisoners with such riot. Where the counsel for the prosecution was pursuing this course, Alderson, J., interposed, and said that he must identify the prisoners as having been present. He stated that it had been held by the judges at the special commission at Salisbury, in 1830, that the prisoners must first be identified as having been present, forming part of the crowd, and that the fifteen judges had confirmed the holding of the special commission. Nicholson's case, 1 Lewin, C. C. 300 (1).

And

In the above case, it was stated by the counsel for the prosecution, that an opposite course had been pursued in the Manchester case. the latter mode of proof is adopted in cases of conspiracy. See ante, p. 372.

On the trial of an action of trespass, the issues were, whether a conspiracy had existed to excite discontent and disaffection, and also whether there had been an unlawful assembly to the terror of the inhabitants of the town of Manchester. For the purpose of proving the affirmative, evidence was offered of large bodies of men having been seen, on the morning of the day in question, marching along the road, and of expres

(1) Penn. v. Craig & al., Addis. 191. Penn. v. Cribs & al., Ibid. 277.
(a) Eng, Com. L. Rep. xxiv. 252. (b) Id.

*

sions made use of by them tending to show that they were proceeding to a place called Whitemoss, for the purpose of being drilled. Evidence was also offered of drillings in the neighborhood of Manchester, previous to the meeting, and a witness was asked whether the proceedings which he saw created any alarm in his mind. Another witness stated that he saw several parties of men proceeding to the place where there had been drillings, and he was asked as to their having solicited him to join them, and as to declarations made by some of those persons with regard to the object and purpose of their going thither. The whole of this evidence was objected to, but was admitted by Holroyd, J., and on a motion for a new trial, the Court of King's Bench held that it had been rightly received. Redford v. Birley, 3 Stark. N. P. 76 (a) (1).

Proof upon prosecutions under the riot act.] By the I Geo. I. stat. 2, c. 5, s. 1, (commonly called the riot act,) it is enacted, "that if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, and being required or commanded by one or more justice or justices of the peace, or by the sheriff of the county, or by his under-sheriff, or by the mayor, bailiff, or bailiffs, or other head officer or justice of the peace of any city or town corporate where such assembly shall be, by proclamation, to be made in the King's name in the form thereinafter directed, to disperse *themselves, and peaceably to depart to their [*921 ] habitations or to their lawful business, shall to the number of twelve or more (notwithstanding such proclamation made), unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such remaining or continuing together, to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, [and shall suffer death, as in the case of felony, without benefit of clergy.]"

By s. 5, opposing and hindering the making of the proclamation shall be adjudged felony, without benefit of clergy, and persons assembled to the number of twelve, to whom proclamation should have been made, if the same had not been hindered, not dispersing within an hour after such hindrance, having knowledge thereof, shall be adjudged felons [and suffer death.]

Now by the 7 Wm. 4 and 1 Vict. c. 91, s. 1, after reciting (inter alia) the above statute, it is enacted, "that if any person shall after the commencement of this act be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."

By s. 2, in cases of imprisonment the court may award hard labor, and also solitary confinement not exceeding one month at any one time, and three months in any one year.

(1) If several be indicted for a riot, and there is proof against one only, all must be acquitted. Penn. v. Hurton & al., Addis. 334. See State v. Allison, 3 Yerger, 428.

(a) Eng. Com. L. Rep. xiv. 166.