months' imprisonment for every offence; such offence to be prosecuted in the court of King's Bench, or at the assizes or quarter sessions, within six months, and proved by two credible witnesses. (a) But there is a proviso, that the act shall not hinder persons, not exceeding ten in number, from presenting any public or private grievance or complaint to any member of Parliament, or to the king, for any remedy to be thereupon had: nor extend to any address to his Majesty by the members of the houses of Parliament, during the sitting of Parliament. (b)

The common law, and also several more ancient statutes than those which have been mentioned, authorize proceedings for the restraining and suppression of riots. By the common law the sheriff, under-sheriff, constable, or any other peace-officer, may, and ought to do, all that in them lies towards the suppressing of a riot, and may command all other persons to assist them and by the common law also any private person may lawfully endeavour to appease such disturbances by staying the persons engaged from executing their purpose, and also by stopping others coming to join them. (c) It has been holden also, that private persons may arm themselves in order to suppress a riot; (d) from whence it seems clearly to follow that they may also make use of arms in suppressing it, if there be a necessity. However, it may be very hazardous for private persons to proceed to these extremities; and such violent methods seem only proper against such riots as savour of rebellion. (e) But if a felony be about to be committed, the interference of private persons will be justifiable; for a private person may do any thing to prevent the perpetration of a felony. (f) In the riots which took place in the year 1780, this matter was much misunderstood, and a general persuasion prevailed that no indifferent person could interpose without the authority of a inagistrate; in consequence of which much mischief was done, which might otherwise have been prevented. (g)

The statute 34 Edw. 3. c. 1. empowers justices of the peace to restrain and arrest rioters; and, having been construed liberally, it has been resolved, that a single justice may arrest persons riotously assembled, and may also authorize others to arrest them by a parol command. By the statute 13 Hen. 4. c. 7. s. 1. the justices of the peace, three or two of them at the least, and the sheriff or under-sheriff of the county where any riot, assembly, or rout of people against the law shall be made, shall come with the power of the county (if need be) to arrest them; and shall arrest them; and shall have power to record that which they shall find

(a) 13 Car. 2. st. 1. c. 5. s. 2.

(b) 13 Car. 2. st. 1. c. 5. s. 3. By 1 W. and M. sess. 2. c. 2. s. 1. art. 5. usually styled the Bill of Rights, it is enacted, "That it is the right of the "subjects to petition the king, and "that all commitments and prosecu"tions for such petitioning are illegal." It was contended, that this article had virtually repealed the statute 13 Car. 2. c. 5.: but Lord Mansfield declared it to be the unanimous opinion of the

court, that neither that nor any other act of Parliament had repealed it, and that it was in full force. Rex v. Lord George Gordon, Dougl. 571.

(c) 1 Hawk. P. C. c. 65. s. 11. (d) Case of arms, Poph. 121. Kel. 76.

(e) 1 Hawk. P. C. c. 65. s. 11. (f) By Chambre, J. in Handcock v. Baker and others, 2 Bos. and Pul. 265.

(g) By Heath, J. in Handcock v. Baker and others, 2 Bos. and Pul. 265.

so done in their presence against the law: and by such record the offenders shall be convicted in the same manner as is contained in the statute of forcible entries. (h) In the interpretation of this statute it has been holden, that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing 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. (i)

An indictment for a riot must shew for what act the rioters of the indictassembled, that the court may judge whether it was lawful or ment and trial. not: (k) and it must state that the defendants unlawfully assembled for a riot is a compound offence: there must be not only an unlawful act to be done, but an unlawful assembly of more than two persons. (1) In a case where six persons being indicted for a riot, two of them died without being tried, two were acquitted, and the other two were found guilty, the court refused to arrest the judgment, saying, that as the jury had found two persons to be guilty of a riot, it must have been together with those two who had never been tried, as it could not otherwise have been a riot. (m) But as two persons only cannot be guilty of a riot, it was held, that where several were indicted, and all but two were acquitted, no judgment could be given against the two. (n) And though the indictment in this case charged a battery upon an individual as well as a riot, and it was argued that the riotose, &c. was only to express the manner of the assault, and a kind of aggravation of the offence, it was held that the two persons could not be intended to be guilty of the battery; that the offence was special and laid as a riot, the riotose extending to all the facts, and the battery being but part of the riot; so that the defendants being acquitted of the riot were acquitted of the whole of which they were indicted. But it was also held, that if the indictment had been, that the defendants, with divers other disturbers of the peace, had committed this riot and battery, and the verdict had been as in this case, the king might have had judgment. (0)

an indictment

Upon an indictment against H. Hunt and others, for a conspi- Evidence upon racy and unlawfully meeting together with persons unknown, for a conspifor the purpose of exciting discontent and disaffection, at which racy in unlaw

2 H.

(h) 5 R. 2. stat. 1. c. 7. (i) 4 Blac. Com. 146, 147. 1 Hale 495. The statutes 17 R. 2. c. 8. 5. c. 8. and 19 H. 7. c. 13. relate also to the summary proceedings of justices, &c. in cases of riots, which it is not thought necessary to mention further in this Work. The different statutes and the construction put upon them may be seen in 1 Hawk. P. C. c. 65. s. 14. et seq. and 5 Burn. Riots, &c. II, III, IV, V. The statutes 2 H. 5. c. 8. 2 H. 5. c. 9. and 2 H. 6. c. 14. relate to process out of chancery in cases

fully assem

bling, &c. to

tent and dis

affection.

meeting H. Hunt was the chairman, it was holden, that resoluexcite discon- tions passed at a former meeting assembled a short time before, in a distant place, but at which H. Hunt also presided, and the avowed object of which meeting was the same as that of the meeting mentioned in the indictment, were admissible in evidence, to shew the intention of H. Hunt in assembling and attending the meeting in question. And it was holden that a copy of these resolutions delivered by H. Hunt to the witness at the time of the former meeting, as the resolutions then intended to be proposed, and which corresponded with those which the witness heard read from a written paper, was admissible, without producing the original. (p)

In the same case it appeared, that large bodies of men had come to the meeting in question from a distance, marching in regular order resembling a military march: and it was holden to be admissible evidence, to shew the character and intention of the meeting, that within two days of the time at which it took place considerable numbers were seen training and drilling before daybreak, at a place from which one of these bodies had come to the meeting; and that, upon their discovering the persons who saw them, they ill-treated them, and forced one of them to take an oath never to be a king's man again. And it was also admitted as evidence for the same purpose, that another body of men in their progress to the meeting, on passing the house of the person who had been so ill-treated, expressed their disapprobation of his conduct by hissing. (q)

It was decided in this case, that parol evidence of inscriptions and devices on banners and flags displayed at a meeting is admissible without producing the originals. (r)

And another point was also decided in this case; namely, that upon the indictment in question evidence of the supposed misconduct of those who dispersed the meeting was not admissible. (s)

In another case where the question was, with what intention a great number of persons assembled to drill, declarations made by those assembled and in the act of drilling, and further declarations made by others who were proceeding to the place, and solicitations made by them to others to accompany them declaratory of their object, were held to be admissible in evidence for the purpose of shewing their object. (t) And in general, evidence is admissible to shew that the meeting caused alarm and apprehension, and to prove information given to the civil authorities, and the measures taken by them in consequence of such information. (u)

Where several were indicted for a riot, it was moved, that the prosecutor might name two or three, and try it against them, and that the rest might enter into a rule to plead not guilty (guilty if the others were found guilty;) and a rule was made accord

(p) Rex v. .Hunt and others, 3 B. and A. 566.

(q) Id. Ibid. (r) Id. Ibid. (s) Id. Ibid.

(t) Redford v. Birley, cor. Holroyd, J. Lancaster Spr. Assizes, 1822. 3 Stark. Evid. 1510.

(u) Id. Ibid. and 3 Stark. N. P. C. 76.

ingly; this being to prevent the charges in putting them all to plead. (p)

The punishment for offences of the nature of riots, routs, or un- Punishment. lawful assemblies, at common law, is fine and imprisonment, in proportion to the circumstances of the offence: (4) and formerly, in cases of great enormity, it appears that the offenders were sometimes punished with the pillory; (r) but such punishment is now taken away by the statute 56 Geo. 3. c. 138.

(p) Anon. 3 Salk. 317. Regin. v. Middlemore, 6 Mod. 212.

(q) 1 Hawk. P. C. c. 65. s. 12.
(r) Id. Ibid.

270

CHAPTER THE TWENTY-SIXTH.

OF AFFRAYS.

Aggravated .affrays.

AFFRAYS are the fighting of two or more persons in some public place, to the terror of his Majesty's subjects. (a) The derivation of the word affray is from the French effrayer, to terrify; and as in a legal sense it is taken for a public offence to the terror of the people, it seems clearly to follow that there may be an assault which will not amount to an affray: as where it happens in a private place, out of the hearing or seeing of any except the parties concerned; in which case it cannot be said to be to the terror of the people. (b) And there may be an affray which will not amount to a riot, though many persons be engaged in it: as if a number of persons, being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, it seems agreed that they will not be guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it; and this on the ground of the design of their meeting being innocent and lawful, and the subsequent breach of the peace happening unexpectedly without any previous intention. (c) An affray differs also from a riot in this, that two persons only may be guilty of it: whereas three persons at least are necessary to constitute a riot, as has been shewn in the preceding Chapter.

An affray may be much aggravated by the circumstances under which it takes place, either, first, in respect of its dangerous tendency; secondly, in respect of the persons against whom it is committed; or, thirdly, in respect of the place in which it happens.

An affray may receive an aggravation from its dangerous tendency; as where persons coolly and deliberately engage in a duel which cannot but be attended with the apparent danger of murder, and is not only an open defiance of the law, but carries with it a direct contempt of the justice of the nation, putting men under the necessity of righting themselves (d) And an affray may

(a) 4 Blac. Com. 144. 3 Inst. 158. 1 Burn. Just. Affray, I.

(b) 1 Hawk. P. C. c. 63. s. 1. In 3 Inst. it is said that an affray is a public offence to the terror of the king's subjects; and is an English word, and

so called because it affrighteth and maketh men afraid; and is enquirable in a leet as a common nuisance.

(c) 1 Hawk. P. C. c. 65. s. 3. (d) 1 Hawk. P. C. c. 63. s. 21. This would apply to such duels as were