defendant stood at the time he wrote the libel, and showed the impression under which he wrote; but the latter were rejected, because the receiving them might deprive of a fair trial persons who might afterwards be tried for the murders; and if murders were committed, the proper course was to prosecute and bring to a fair trial, not to libel and create an unfair prejudice.(y)

*Where an indictment for a libel on the governor of a parish workhouse

*377] was preferred by the direction and carried on at the expense of the select

vestry of the parish, and the defendant having removed it into the King's Bench by certiorari was convicted, it was held that the party libelled was not the "party grieved" within the 5 & 6 Will. & M. c. 11, s. 3, and, therefore, was not entitled to costs.(z)

On a criminal information for libel the defendant, if he obtain a verdict, is entitled to costs under the 6 & 7 Vict. c. 96, s. 8, though he has not pleaded a special plea under sec 6; and the judge cannot deprive him of costs by a certificate. the provision in the 4 & 5 Will. & M. c. 18, s. 2, on this head being superseded by the later Act. (a) The Court of Queen's Bench has no jurisdiction to direct the clerk of assize to review his taxation of costs (under the 6 & 7 Vict. c. 96, s. 8) of an indictment for libel tried on the Crown side under a commission of oyer and terminer. But, perhaps, one of the commissioners under that commission might do so, before that commission was superseded.(b)

*378]

*CHAPTER THE TWENTY-FIFTH.

OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

THE distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute. (a) These offences may be treated of more at large in the order in which they have been mentioned.

I. A riot is described to be a tumultuous disturbance of the peace by three persons or more, 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.(b)1

(y) Rex v. Burdett, 4 B. & A. 314 (6 E. C. L. R.).

(z) Rex v. Dewhurst, 5 B. & Ad. 405 (27 E. C. L. R.). See Reg. v. Hawdon, 3 P. &

D. 44.

(a) Reg. v. Latimer, 15 Q. B. 1077 (69 E. C. L. R).

(b) Reg. v. Newhouse, 1 Bail. C. R. 129.

(a) 1 Hawk. P. C. c. 65, ss. 1, 8, 9; 3 Inst. 176; 4 Blac. Com. 146.

(b) 1 Hawk. P. C. c. 65, s. 1. Three persons or more is the correct description of the number of persons necessary to constitute a riotous meeting; but it should be observed, that in Hawkins (c. 65, ss. 2, 5, 7) the words "more than three persons," are three times over inserted instead of "three persons or more;" which in Burn's Just. tit. Riot, sec. 1, is remarked as an instance that, in a variety of matter, it is impossible for the mind of man to be always equally attentive. The description of riot stated in the text, and taken from the work of Mr. Serjeant Hawkins, is submitted as that which would probably be deemed most correct at the present time. It should be observed, however, that riot has been described differently by high authority. In Reg. v. Soley and others, 11 Mod. 116,

1 Comm. v. Runnells, 10 Mass. 518; Pennsylvania v. Cribs, Addis. 277; Resp v. Montgomery, 1 Yeates 419; Pennsylvania v. Craig, Addis. 191; Pennsylvania v. Bugher, Ibid.

In some cases, in which the law authorizes force, it is not only lawful, but also commendable, to make use of it; as for a sheriff or constable, or perhaps even for a private person, to assemble a competent number of people in order with force to suppress rebels, or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause to fear a violent resistance, to raise the posse, in order to remove a force in making an entry into, or detaining of, lands. Also, it seems to be the duty of a sheriff, or other minister of justice, having the execution of the King's writs, and being resisted in endeavoring to execute them, to raise such a power as may effectually enable them to overpower any such resistance: yet it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resistance; and it is

certain that they are highly punishable for using any needless outrage or [*379

violence.(c)

It seems to be agreed, that the injury or grievance complained of, and intended to be revenged or remedied by a riotous assembly, must relate to some private quarrel only; as the enclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. For the proceedings of a riotous assembly on a public or general account, as to redress grievances, pull down all inclosures, or to reform religion, 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.(d)

It seems to be clearly agreed that in every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people; as the show of armor, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi.(e) But it is not necessary, in order to constitute this crime, that personal violence should have been committed.(f) If sufficient force be used to terrify single person, it is enough, though no other persons are near enough to be within reach of the alarm. Four persons went to a cottage, in which was one old man; one of them began to knock down the end of the cottage with an axe, and knocked part of the woodwork against the old man; he caught the old man by the collar, and said, “Come, you must go out of the house," and he did go out, and the prisoners pulled the house to the ground, except the chimney; the jury were told that if such force was used by the four prisoners as to terrify the old man, they might find that there was a riot, and this direction was held right.(g) Upon these principles, assemblies at wakes, or other festival times, or meetings for the exercise of common sports or diversions, as bull-baiting, wrestling, and Holt, C. J., said, "The books are obscure in the definition of riots. I take it, it is not necessary to say they assembled for that purpose, but there must be an unlawful assembly; and as to what act will make a riot, or trespass, such an act as will make a trespass will make a riot. If a number of men assemble with arms, in terrorem populi, though no act is done, it is a riot. If three come out of an alehouse, and go armed, it is a riot." (c) 1 Hawk. P. C. c. 65, s. 2; 19 Vin. Abr. tit. Riots, &c. (A.) 4.

(d) 4 Blac. Com. 147; 1 Hawk. P. C. c. 65, s. 6.

(e) 1 Hawk. P. C. c. 65, s. 5.

(f) Per Mansfield, C. J., in Clifford, v. Brandon, 2 Campb. 369.

(9) Reg. v. Phillips, 2 M. C. C. 252; s. c. as Reg. v. Langford, C. & M. 602.

333; State v. Bailey, 3 Blackf. 209; Terpin v. State, 4 Ibid. 72; State v. Connelly, 3 Rich. 337; Shouse v. Comm., 5 Barr 83; State v. Slatcup, 1 Ired. 30; State v. Snow, 18 Maine 346; Williams v. State, 9 Miss 270; Scott v. United States, 1 Morris 142; State v. Renton, 15 N. H. 169; State v. Brook, 1 Hill (S. C.) 362; Comm. v. Berry, Gray 93; Sloan v. State, 9 Ind. 565; Hardebeck v. State, 10 Ibid 459; State v. Russell, 45 N. H. 83; Comm. v. Gebney, 2 Allen 150.

Persons assembled with intent to whip a man, or to have it done, are guilty of a riot though some other person inflict the blows: Newby v. Territory, 1 Oregon 163. Four persons, acting in concert, went at midnight in a frolic to the prosecutor's stable and shaved his horse's tail; and in so doing, made noise enough to arouse and alarm the family, held that they were indictable for a riot: State v. Alexander, 7 Rich. 5. It is not necessary that the act of the rioters should be in fulfilment of an unlawful purpose: State v. Blair, 13 Rich. (Law) 93.

such like, are not riotous.(h) And upon the same ground also it seems to follow that it is possible for three persons or more to assemble together with an intention to execute a wrongful act, and also actually to perform their intended enterprise, without being rioters; as if a man assemble a number of persons to carry away a piece of timber or other thing to which he claims a right, and which cannot be carried away without a *number of persons, this will not of itself be a riot, *380] if the number of persons are not more than are necessary for the purpose; and if there are no threatening words used, nor any other disturbance of the peace; even though another man has better right to the thing carried away, and the act therefore is wrong and unlawful.(i) Where on an indictment for a riot it appeared that two men were fighting amidst a great crowd, and that some persons were aiding and assisting; but on some peace officers appearing the fight ceased, and the fighters quietly yielded to the officers: Alderson, B., held that this was not a riot.() Much more may any person, in a peaceable manner, assemble a fit number of persons to do any lawful thing; as to remove any common nuisance, or any nuisance to his own house or land. And he may do this before any prejudice is received from the nuisance, and may also enter into another man's ground for the purpose. Thus, where a man having erected a wear across a common navigable river, divers persons assembled with spades and other instruments necessary for removing it, and dug a trench in the land of the man who made the wear in order to turn the water and the better to remove it, and thus removed the nuisance, it was holden not to be a forcible entry nor a riot.(1)

But if there be violence and tumult, it has been generally holden not to make any difference whether the act intended to be done by the persons assembled be of itself lawful or unlawful; from whence it follows that if three or more persons assist a man to make a forcible entry into lands to which one of them has a good right of entry; or if the like number, in a violent and tumultuous manner, join together in removing a nuisance or other thing, which may be lawfully done in a peaceable manner, they are as properly rioters as if the act intended to be done by them were ever so unlawful (m) And if in removing a nuisance the persons assembled use any threatening words (such as, they will do it though they die for it, or the like,) or in any other way behave in apparent disturbance of the peace, it seems to be a riot.(n) So where on an indictment for riot it appeared that the defendants, two of whom were bail to an action for the prosecutor, put in by bail to the sheriff before the return of the writ, had forcibly entered his house, and taken him, in order to render him, Lord Tenterden, Č. J., held that, as they were not justified in doing so, they must be convicted.(o) If a large body of men assemble themselves together for the purpose of obtaining any particular end, and

(h) 1 Hawk. P. C. c. 65, s. 5. But see in 2 Chit. Crim. L. 494, an indictment said to have been drawn in the year 1797, by a very eminent pleader for the purpose of suppressing an ancient custom of kicking about foot-balls on a Shrove-Tuesday, at Kingston-uponThames. The first count is for riotously kicking about a foot-ball in the town of Kingston; and the second, for a common nuisance in kicking about a foot-ball in the said town. And in Sir Antony Ashley's case, 1 Roll. R. 109, Coke, C. J., said, that the stageplayers might be indicted for a riot and unlawful assembly; and see Dalt. Just. c. 136, (citing Roll. R.) that if such players, by their shows occasion an extraordinary and unusual concourse of people to see them act their tricks, this is an unlawful assembly and riot, for which they may be indicted and fined: 19 Vin. Abr. tit. Riots, &c. (A.) 8. (i) 1 Hawk. P. C. c. 65, s. 5; Reg. v. Soley, 11 Mod. 117; Dalt. c. 137; Burn's Just. tit. Riots, s. 1.

(1) Dalt. c. 137; Burn. tit. Riot, s. 1.

(k) Reg. v. Hunt, 1 Cox C. C. 177. (m) 1 Hawk. P. C. c. 65, s. 7. The law will not suffer persons to seek redress of their private grievances by such dangerous disturbances of the public peace; but the justice of the quarrel in which such an assembly may have been engaged will be considered as a great mitigation of the offence. And per cur. in 12 Mod. 648, Anon., if one goes to assert his right with force and violence, he may be guilty of a riot.

(n) Dalt. c. 137. Burn's Just. tit. Riot, s. 1, where it is said, that if there is cause to remove any such nuisance, or to do any like act, it is safest not to assemble any multitude of people, but only to send one or two persons, or if a greater number, yet no more than are needful, and only with meet tools in order to remove it: and that such persons tend their business only, without disturbance of the peace, or threatening speeches.

(0) Rex v. Hughes, M. & M. 178, note (a).

conduct themselves in a *turbulent manner, either accompanied with acts of [*381 violence, or with threats and intimidations calculated to excite the terror and alarm of the Queen's subjects, this is in itself a riot, whether the end and object proposed be a just and legitimate one or not.(p)

But the violence and tumult must in some degree be premeditated. For if a number of persons, being met together at a fair, market, or any other lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, it seems to be agreed that they are not guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it; because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention. (q) But if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous. As where it was held that, although the audience in a public theatre have a right to express the feelings excited at the moment by the performance, and in this manner to applaud or to hiss any piece which is represented, or any performer who exhibits himself on the stage; yet if a number of persons, having come to the theatre with a predetermined purpose of interrupting the performance, for this purpose makes a great noise and disturbance, so as to render the actors entirely inaudible, though without offering personal violence to any individual, or doing any injury to the house, they are guilty of a riot.(r)

Even though the parties may have assembled for an innocent purpose in the first instance, yet if they afterwards, upon a dispute happening to rise amongst them, form themselves into parties, with promises of mutual assistance, and then make an affray, it is said that they are guilty of a riot, because upon their confederating together with an intention to break the peace, they may as properly be said to be assembled together for that purpose from the time of such confederacy, as if their first coming had been on such a design; and it seems to be clear that if, in an assembly of persons met together on any lawful occasion whatsoever, a sudden proposal should be started of going together in a body to pull down a house, or enclosure, or to do any other act of violence, to the disturbance of the public peace, and such motion be agreed to, and executed accordingly, the persons concerned cannot but be rioters; because their associating themselves together, for such a new purpose, is in no way extenuated by their having met at first upon another.(s)

If any person, seeing others actually engaged in a riot, joins himself to them and assists them therein, he is as much a rioter as if he had at first assembled with them for the same purpose, inasmuch as he has no pretence that he came innocently into the company, but appears to have joined himself to them with an intention of seconding them in the execution of their unlawful enterprise: and it would be endless, as well as superfluous, to *examine whether every particu- [*382 lar person engaged in a riot were in truth one of the first assembly, or actuallly had a previous knowledge of the design. (t) And the law is that if any person encourages, or promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter; for in this case all are principals.(u) It has been ruled, however, that if three or more, being lawfully assembled, quarrel, and the party fall on one of their own company, this is no riot; but that if it be on a stranger, the very moment the quarrel begins, they begin to be an unlawful assembly, and their concurrence is evidence of an evil intention in them that concur, so that it is a riot in them that act, and in no more.(v) The inciting persons to

(p) Per Tindal, C. J., in his charge to the Stafford grand jury, A. D. 1842, C. & M. 661. (9) 1 Hawk. P. C. c. 65, s. 3.

(r) Clifford v. Brandon, 2 Campb. 358. See Gregory v. The Duke of Brunswick, 6 M. & G. 953 (46 E. C. L. R.); 3 C. B. 481 (54 E. C. L. R.) ; 1 C. & K. 24 (47 E. C. L. R.); Rex v. Leigh, Ann. Reg. for 1775, p. 117.

(8)

Hawk. P. C. c. 65, s. 3.

(t) Id. Ibid.

(u) By Mansfield, C. J. in Clifford v. Brandon, 2 Campb. 370. And see Rex v. Royce, 4 Burr. 2973, and the second and third resolutions in the Sissinghurst House case, 1 Hale 463; Reg. v. Sharpe, 3 Cox C. C. 288.

(r) 19 Vin. Abr. tit. Riots, &c. (A.) 15; Reg. v. Ellis, 2 Salk. 595.

VOL 1.-20

assemble in a riotous manner appears also to have been considered as an indictable offence.(w)1

Concerning some acts done in a tumultuous and riotous manner, especial provision is made by particular statutes. By the 24 & 25 Vict. c. 97, s. 11, "If any persons riotously and tumultuously assembled together to the disturbance of the public peace shall unlawfully and with force demolish, pull down, or destroy, any church, chapel, meeting-house, or other place of Divine worship, or any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malthouse, hop-oast, barn, granary, shed, hovel, or fold, or any building or erection used in farming land, or in carrying on any trade or manufacture, or any branch thereof, or any building other than such as are in this section before mentioned, belonging to the Queen, or to any county, riding, division, city, borough, poor law union, parish, or place, or belonging to any university, or college, or hall of any university, or to any inn of court, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution, or any machinery, whether fixed or movable, prepared for or employed in any manufacture or in any branch thereof, or any steam-engine or other engine for sinking, working, ventilating, or draining any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such offender shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(x)

*383] *Sec. 12. "If any persons, riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force injure or damage any such church, chapel, meeting-house, place of Divine worship, house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel, fold, building, erection, machinery, engine, staith, bridge, wagon-way, or trunk, as is in the last preceding section mentioned, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years,- -or to be imprisoned for any term not exceeding two years, with or without hard labor: provided that if upon the trial of any person for any felony in the last preceding section mentioned the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of any offence in this section mentioned, then the jury may find him guilty thereof, and he may be punished accordingly."(y)

This clause is new, and is intended to provide both for cases where there is no sufficient evidence of an intention to proceed to the total demolition of the house, &c., and also for cases where no such intent ever existed, provided there be a riot, and injury done, within the terms of the clause.

The latter part of the clause enables the jury, who try an indictment for any felony mentioned in the preceding section, to convict of the offence created by this clause if they are not satisfied that an offence within the preceding clause is satis

(w) See a precedent, Cro. Circ. Comp. 420 (8th edit.), the first count of which is for inciting persons to assemble, and that in consequence of such incitement they did so; and the second count states the inciting, and omits the assembling in consequence of it. See a similar precedent in 2 Chit. Crim. L. 506, and the principles stated, ante, p. 83, et seq. (x) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 8. There were similar enactments in the 23 & 24 Geo. 3, c. 20, ss. 7, 8 (I), and 27 Geo. 3, c. 15, s. 5 (I). As to the words "meeting house," &c., see the note to s. 1, post, vol. 2. As to the other words in italics, except "ventilating," sec. ss. 3 & 5, post, vol. 2. As to hard labor, &c., see ante, p. 4; and as to principals in the second degree and accessories, see ante, p. 5.

(y) As to procurers, aiders and abettors, see ante, p. 5; and as to hard labor, &c., see ante, p. 4.

1 The instruction is erroneous, that "in riotous and tumultuous assemblies, all who are present and not actually assisting in the suppression in the first instance, are, in presumption of law participants, and that the obligation is cast upon a person so circumstanced, to prove his non-interference:" State v. M'Bride, 19 Mo. 239.