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. (0)

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. (p)

And that upon the indictment in question evidence of the supposed misconduct of those who dispersed the meeting was not admissible. (q)

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 showing their object. (r) And in general, evidence is admissible to show 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. (8)

It was held by the judges, (t) on the second commission of 1830, 1831, at Salisbury, that the prisoners must first be identified as forming part of the crowd before the riot is proved, and the fifteen judges confirmed the holding of the special commission. (u) But this is a very inconvenient course, and causing much waste of time by recalling witnesses; and it has since been held that in riot, the prosecutor is entitled to prove the acts of any of the rioters before he connects the others with the riot, (v) and this is in conformity with the practice in cases of conspiracy. (w)

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 accordingly; this being to prevent the charges in putting them all to plead. (x)

The punishment for offences of the nature of riots, routs, or unlawful assemblies, at common law, is fine and imprisonment, in proportion to the circumstances of the offence: (y) and formerly, in cases of great enormity, it appears that the offenders were sometimes punished with

(0) Id. ibid.

(p) Id. ibid. (2) Id. ibid.

(r) Redford v. Birley, cor. Holroyd, J.,

3 Stark. N. P. C. 76.

(s) Id. ibid.

(t) Vaughan, B., Parke and Alderson, JJ. (u) Per Alderson, B., in Nicholson's case,

1 Lew. 300, where the same course was adopted.

(v) R. v. Cooper, Stafford Summer Ass. 1850. Williams, J. MSS. C. S. G. (w) See ante, p. 491, Conspiracy.' (x) R. v. Middlemore, 6 Mod. 212. (y) 1 Hawk. P. C. c. 65, s. 12.

AMERICAN NOTE.

As to the admissibility of this evidence in America see Patten v. P., 18 Mich. 314. 100 Am. D. 173.

the pillory; (2) but such punishment is now taken away by the 56 Geo. 3, c. 138.

And by the 3 Geo. 4, c. 114, whenever any person shall be convicted of a riot, it shall and may be lawful for the Court before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order, if such Court shall think fit, sentence of imprisonment, with hard labour, for any term, not exceeding the term for which such Court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders, by any law in force before the passing of this Act; and every such offender shall thereupon suffer such sentence, in such place, and for such time as aforesaid, as such Court shall think fit to direct.'

(z) Id. ibid.

CHAPTER THE TWENTY-SIXTH.

OF 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 affrayer, 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 the terror of the people. (b) Thus, where two of the prisoners had fought together amidst a great crowd of persons, and the others were present aiding and assisting, at a place a considerable distance from any highway, and the fight ceased on the appearance of some peace officers, it was held that this was not an affray; for an affray must occur in some public place, and this was to all intents and purposes a private one. (c) 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. (d) 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 shown 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 ten

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

(b) Hawk. P. C. c. 63, s. 1. In 3 Inst. 158, 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 it is inquirable in a leet as a common nuisance.

(c) R. v. Hunt, 1 Cox, C. C. 177. Alderson, B. If all the persons present went

to see the fight, they were all guilty of an assault; R. v. Perkins, 4 C. & P. 537, Patteson, J. An assembly for a prize fight is clearly an unlawful assembly, and where there is resistance to lawful authority exercised for the purpose of putting a stop to it, the offence may amount to an affray, or even a riot. R. v. Billingham, 2 C. & P. 234, Burrough, J.

(d) 1 Hawk. P. C. c. 65, s. 3.

AMERICAN NOTE.

1 As to what is a public place in America see Taylor v. S., 22 Ala. 15. Words, however violent, cannot constitute an affray.

Hawkens v. S., 13 Geo. 322; O'Neill v. S., 16 Ala. 65, but as to provocative language see S. v. Perry, 5 Jones (Law), 9.

dency; 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. (e) And an affray may receive an aggravation from the persons against whom it is committed; as where the officers of justice are violently disturbed in the due execution of their office, by the rescue of a person legally arrested, or the bare attempt to make such a rescue; the ministers of the law being under its more immediate protection. (f) And further, an affray may receive an aggravation from the place in which it is committed; it is therefore severely punishable when committed in the King's courts, or even in the palace yard near those courts; and it is highly finable when made in the presence of any of the King's inferior courts of justice. (g) And, upon the same account also, affrays in a church or church-yard have always been esteemed very heinous offences, as being very great indignities to the Divine Majesty, to whose worship and service such places are immediately dedicated. (h)

It is said, that no quarrelsome or threatening words whatsoever can amount to an affray; and that no one can justify laying his hands on those who shall barely quarrel with angry words, without coming to blows but it seems that a constable may, at the request of the party threatened, carry the person who threatens to beat him before a justice, in order to find sureties. And granting that no bare words, in the judgment of law, carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray where there is no actual violence; as where persons arm themselves with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people, which is said to have been always an offence at common law, and is strictly prohibited by several statutes. (i)

The principal of these statutes is 2 Edw. 3, c. 3, sometimes spoken of as the statute of Northampton. It enacts, that no man, of what condition soever, except the King's servants in his presence, and his ministers in executing their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, shall come before the King's justices or other of the King's ministers doing their office, with force and arms, nor bring any force in affray of peace, (j) nor go nor ride armed, by night or day, in fairs or markets, or in the presence of the King's justices, or other ministers, or else

(e) 1 Hawk. P. C. c. 63, s. 21. This would apply to such duels as were fought in ancient times; and to such as have been occasionally heard of, in more modern days, in neighbouring countries, fought amidst a number of spectators.

(f) 1 Hawk. P. C. c. 63, s. 22. And see post, chap. on Rescue.

(g) 1 Hawk. P. C. c. 21, ss. 6, 10; c. 63, S. 23. As to striking in the courts of justice, see post, Aggravated Assaults.

where; upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. The statute also provides, that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises and their bailiffs in the same, and mayors and bailiffs of cities and boroughs within the same, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute the Act; and that the judges of assize may inquire and punish such officers as have not done that which pertained to their office. (k)

In the exposition of the 2 Edw. 3, c. 3, it has been holden, that no wearing of arms is within its meaning, unless it be accompanied with such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are in no danger of offending against the statute by wearing common weapons, or having their usual number of attendants with them for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence, or disturbance of the peace. (1) And no person is within the intention of the statute who arms himself to suppress dangerous rioters, rebels, or enemies, and endeavours to suppress or resist such disturbers of the peace and quiet of the realm. (m) But a man cannot excuse wearing such armour in public by alleging that a person threatened him, and that he wears it for the safety of his person from the assault: though no one will incur the penalty of the statute for assembling his neighbours and friends in his own house, against those who threaten to do him any violence therein, because a man's house is as his castle. (n)

It may be useful to mention shortly the acts which may be done for the suppression of an affray, by a private person, by a constable, or by a justice of peace.

Suppression of affrays by a private person. It seems to be agreed, that any one who sees others fighting may lawfully part them, and also stay them till the heat be over, and then deliver them to the constable, who may carry them before a justice of peace, in order to their finding sureties for the peace. (0) Any person present may arrest the affrayer at the moment of the affray, and detain him till his passion has cooled and his desire to break the peace has ceased, and then deliver him to a peace officer; and so any person may arrest an affrayer after the actual violence is over, but whilst he shows a disposition to renew it. Both cases fall within the same principle, which is that for the sake of the preservation of the peace, any individual who sees it broken, may restrain the liberty of him.

(k) The 7 R. 2, c. 13, and 20 R. 2, c. 1, enforcing this Act, are repealed by the 19 & 20 Vict. c. 64.

() 1 Hawk. P. C. c. 63, s. 9. (m) Id. s. 10.

(n) Id. s. 8, and see in ss. 5, 6, 7, as to the proceedings of justices, &c., executing the Act.

(0) 1 Hawk. P. C. c. 63, s. 11. Where it is said that from hence it seems clearly to follow, that if a man receive a hurt from either party, in thus endeavouring to pre

serve the peace, he shall have his remedy by an action against him; and that upon the same ground it seems equally reasonable that if he unavoidably happen to hurt either party, in thus doing what the law both allows and commends, he may well justify it; inasmuch as he is no way in fault, and the damage done to the other was occasioned by a laudable intention to do him a kindness. See particularly the charge of Tindal, C. J., to the Bristol grand jury, ante, p. 582, note (d).