[without the consent of the Crown (p). 3. Disobeying the sovereign's lawful command-whether by writs issuing out of his courts of justice; or by a summons to attend his privy council; or by letter from him to a subject, commanding him to return from beyond the seas, (for disobedience to which, his lands shall be seized till he does return, and himself afterwards punished). 4. Disobedience to any Act of Parliament, where no particular penalty is assigned. All these are given in the books as instances of misprision and contempts; the general punishment whereof are fine and imprisonment, at the discretion of the courts of justice (g).] XVII. Riotously demolishing churches, houses, buildings or machinery. By 24 & 25 Vict. c. 97 (), if any persons, riotously and tumultuously assembled together to the disturbance of the peace, shall unlawfully and with force demolish, pull down, or destroy (or begin to demolish, pull down, or destroy) any church, chapel, meeting-house, or other place of divine worship; or any house, stable, or other such buildings, engines, or machinery, such as are in the Act mentioned, they shall be guilty of felony: and are liable to penal servitude for life, or any term not less than five years; or to be imprisoned, with or without hard labour, for any term not more than two years (8). And by a previous Act, viz. (p) 3 Inst. 144. (9) Hawk. P. C. b. 1, c. 22, s. 5. (7) Provisions were also contained in 1 Geo. 1, st. 2, c. 5, against the riotous destruction of churches and other places of religious worship, making such offences capital felonies; but these enactments were repealed by 7 & 8 Geo. 4, c. 27; and the offence of riotous demolishment generally, was provided against by c. 30 of the same session, s. 8. This last provision was repealed by 24 & 25 Vict. c. 95, but re-enacted by 7 & 8 Geo. IV. c. 31, by that which is given in the text. (s) 24 & 25 Vict. c. 97, s. 11. (See 27 & 28 Vict. c. 47.) The offenders, if the court think fit, may also be bound over with sureties to keep the peace. (Sect. 73.) Moreover, if such persons shall even injure or damage such church or building, they are (by sect. 12) made guilty of misdemeanor, and are liable to imprisonment for two, or penal servitude to the extent of seven, years. As to this section see R. v. Langford, Car. & Marsh. 602. ss. 2, 3, if any church, chapel, house, or such buildings or machinery as therein mentioned, shall be feloniously demolished, (wholly or in part,) by persons riotously and tumultuously assembled together, the inhabitants of the hundred shall be liable to yield full compensation (t) ;provided that the persons damnified, or such of them as have knowledge of the circumstances, or the servants who had the care of the property, shall, within seven days, go before some justice of the peace residing near and having jurisdiction; shall state upon oath the names of the offenders, if known; shall submit to examination touching the circumstances; and shall become bound, by recognizance, to prosecute; and provided also, that an action against the hundred be commenced within three calendar months after the offence (u). XVIII. Another offence against public order, is that of the illegal destruction of such beasts and fowl as are ranked under the denomination of game; concerning the nature of which, (considered as a species of property,) we had occasion in a former volume to enter into some discussion. It will be necessary here, however, to add to what is there contained, some notice of the penal enactments relative to its destruction in the night-time; which (from obvious considerations) is treated as an offence of considerable gravity. Accordingly, by 9 Geo. IV. c. 69, and 7 & 8 Vict. c. 29 (a), it was provided, that if a person shall, by (t) See 32 & 33 Vict. c. 47, s. 5. As to the " hundred," vide sup. vol. 1. p. 126. (u) When the damage caused by the demolition or attempted demolition does not exceed 307. the statute makes it recoverable by a summary proceeding before justices at a special petty session (7 & 8 Geo. 4, c. 31, s. 8). By 2 & 3 Will. 4, c. 72, the provisions of 7 & 8 Geo. 4, c. 31, on this subject are extended to the damage or destruction of threshing machines: and by the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 477, to the plunder, damage or destruction of ships or boats stranded or in distress. (a) There is also a provision in 24 & 25 Vict. c. 96, s. 17, with respect to the unlawful taking or killing hares or rabbits in warrens, by night. night (y), unlawfully take or destroy game or rabbits, in any land (whether open or enclosed); or on any public road, highway or path, or the sides thereof; or at the openings, outlets or gates from any such lands into such roads;—or shall by night, be in such places, with any gun, net, engine or other instrument, for the purpose of taking or destroying game:-he shall be liable to imprisonment, for the first offence, for any period not exceeding three months, with hard labour; and, at the expiration of such period, to be bound over to his good behaviour by sureties for a year; or, in default of such recognizance, to be further imprisoned for six months, or until such sureties are found (). For a second offence, such person shall be liable to imprisonment for six months, and then to be bound in sureties for two years; and in default thereof, to be further imprisoned for one year, or until such sureties are found (a). And if he shall offend a third time, he is guilty of a misdemeanor; and he is then liable to penal servitude for not more than seven nor less than five years, or to be imprisoned, with hard labour, for any time. not exceeding two years (b). It is moreover provided, that when any person shall be found committing such offence, it shall be lawful for the owner or occupier of the land; -or for any person having a right of free warren or free chase therein; or for the lord of the manor; or for the gamekeeper or servant of such persons or their assistants; -to seize and apprehend the person so offending; and in case he shall assault or offer violence with an offensive weapon, towards any one so authorized to apprehend him, he is guilty of a misdemeanor; and he is, in that case, liable to penal servitude for not more than seven nor less (y) By 9 Geo. 4, c. 69, s. 12, the night, for the purpose of this provision, shall be considered to commence at the expiration of one hour after sunset, and to conclude at the beginning of the last hour before sunrise. (=) Sect. 1. (b) Ibid. ; 7 & 8 Vict. c. 29; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. than five years, or to be imprisoned, with hard labour, for any term not exceeding two years (c). It is further enacted that if three or more persons shall, by night, unlawfully enter any lands or roads, for the purpose of taking or destroying game or rabbits (any of them being armed with a gun or other offensive weapon), each of such persons shall be guilty of a misdemeanor: and they shall severally be liable to penal servitude for any term not more than fourteen years, nor less than five years; or to be imprisoned, with hard labour, for not more than two years (d). XIX. [Affrays, (from affraier, to terrify,) are the fighting of two or more persons in some public place (e), to the terror of her Majesty's subjects; for if the fighting be in private it is no affray, but an assault (f). Affrays are misdemeanors; and may be suppressed by any private person present: who is justifiable in endeavouring to part the combatants, whatever consequences may ensue (g). 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. (e) 9 Geo. 4, c. 69, s. 1; 7 & 8 Vict. c. 29; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. (See Cureton v. The Queen, 1 B. & Smith, 208.) (d) 9 Geo. 4, c. 69, s. 9; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47. See the following cases as to the construction of 9 Geo. 4, c. 69, s. 9; R. r. Dowsell, 6 Car. & P. 398; R. v. Gainer, 7 Car. & P. 231; R. v. Kendrick, ib. 184; R. v. Davis, 8 Car. & P. 759; R. v. Fry, 2 M. & Rob. 42; Fletcher v. Calthrop, 6 Q. B. 880; R. v. Jones, 2 Cox's Cr. C. 185; R. v. Merry, ib. 240; R. v. Whitaker and others, 17 L. J. (M. C.) 127; R. v. Uezzell and others, 20 L. J. (M. C.) 192. (e) As to the case of the actors and spectators at a prize fight, see 1 East, P. C. c. 5, s. 41; Hawk. P. C. b. 1, c. 63, s. 2; R. v. Bellingham, 2 C. & P. 234; R. v. Perkins, 4 C. & P. 537; R. r. Hargrave, 5 C. & P. 170. It seems questionable whether the offence thus committed, is properly speaking an "unlawful assembly," "an affray," or "an assault." (f) Hawk. P. C. ubi sup. [before a justice, or imprison them by his own authority for a convenient space till the heat is over (h). 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 proportionably increases.] As where two persons coolly and deliberately engage in a duel (i); 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, and may even, as an attempt at murder, amount to felony under 24 & 25 Vict. c. 100, s. 14, though no mischief has actually ensued (j). [Another aggravation of an affray is, when thereby the ministers 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 court of the sovereign, and the like (). And upon the same account also, all affrays in a church or churchyard, are esteemed very heinous offences; as being indignities 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 here penal. For it was enacted by statute 5 & 6 Edw. VI. c. 4 (1), that if any person shall-though by words only-quarrel, chide, or brawl in a church or churchyard, the ordinary shall suspend him, if a layman, ab ingressu ecclesiæ; and, if a clerk in orders, from the ministration of his office during pleasure (m); and that if any person in such church or church (h) Hawk. P. C. b. 1, c. 63, s. 13. It seems that a constable has no power to arrest without warrant, for an affray committed out of his own presence. See Cook v. Nethercote, 6 C. & P. 741; Fox v. Gaunt, 3 B. & Ad. 798; R. v. Curvan, R. & M. C. C. R. 132; R. v. Bright, 4 C. & P. 387. (i) See Hawk. ubi sup. s. 21. (j) Vide sup. p. 79. (k) Hawk. ubi sup. c. 21, ss. 6, 10; c. 63, s. 23. (1) See also 1 W. & M. c. 18, s. 18. (m) As to this statute, see Cox v. Goodday, 2 Hagg. R. 139. |