on the information and complaint of another, arrest the offenders, and of course the person so complaining is justified in giving the charge to the constable. The plaintiff went into the defendant's shop, and offered to purchase an article at a price marked on a ticket; the plaintiff disputed with the shopman about the price, and was desired to leave the shop, which he refused to do, and declared he would strike any man who laid hands on him: a shopman then struck him on the face; the plaintiff returned the blow, and a contest commenced, the noise of which brought down the defendant from the room above; when he came down the plaintiff was scuffling with the shopman; the defendant sent for a policeman, and on his arrival the plaintiff was requested by the defendant to go from the shop quietly, but he refused; he was standing still in the shop, insisting on his right to remain there, and a mob gathering round the door, when the defendant gave him in charge to the policeman, who took him to the police station. It was held that the defendant had a right, the danger continuing, to deliver the plaintiff into the hands of the policeman, and that the circumstance that the plaintiff was not guilty of the first illegal violence made no difference; for at the time the defendant interfered he was ignorant of that fact: he saw the plaintiff and others in a mutual contest, and that mutual contest the law gave him power to terminate, for the sake of securing the peace of his house and neighborhood, and the persons of all those concerned from violence.(q) And it seems to be clear, that if either party be dangerously wounded in such an affray, and a stander by, endeavoring to arrest the other, be not able to take him without hurting or even wounding him, yet he is in no way liable to be punished, inasmuch as he is bound, under pain of fine and imprisonment, to arrest such an offender, and either detain him till it appear whether the party will live or die, or carry him before a justice of peace.(r)

It seems agreed, that a constable is not only empowered, as all private persons are, to part an affray which happens in his presence, but is also bound, at his peril, to use his best endeavors for this purpose:(s) and not only to do his utmost himself, but also to demand the assistance of others, which, if they refuse to give him, they are punishable with fine and imprisonment. In order to support an indictment against a person for refusing to aid and assist a constable in the execution of his duty in quelling a riot, it is necessary to prove : first, that the constable actually saw a breach of the peace committed by two or more persons: secondly, that there was a reasonable necessity for the constable calling upon other persons for their assistance and support; and lastly, *that the defendant was duly called [*410 upon to render his assistance, and that without any physical impossibility or lawful excuse, he refused to give it; and whether the aid of the defendant, if given, would have proved sufficient or useful, is not the question or criterion.(t) And it is laid down in the books, that if any affray be in a house, the constable may break open the doors to preserve the peace; and if affrayers fly to a house, and he follow with fresh suit, he may break open the doors to take them.(u) And so far is the constable intrusted with a power over all actual affrays, that though he himself is a sufferer by them, and therefore liable to be objected against, as likely to be partial in his own cause, yet he may suppress them; and therefore if an assault be made upon him, he may not only defend himself but also imprison the offender in the same manner as if he were in no way a party. (v) It is said also, that if a constable see persons either actually engaged in an affray, as by striking, or offering to strike, or drawing their weapons, &c., or upon the very point of entering upon an affray, as where one shall threaten to kill, wound, or beat another, he may either carry the offender before a justice of the peace, to the end that such justice may compel him to find sureties for the peace, &c., or he may

(4) Timothy v. Simpson, 5 Tyrw. 244; 1 C., M. & R. 757.

(r) 1 Hawk. P. C. c. 63, s. 12; 3 Inst. 158.

(*) See the charge of Tindal, C. J., ante, p. 402, note (g).

(1) Reg v. Brown, C. & M. 314 (41 E. C. L. R.).

(u) 1 Hawk. P. C. c. 63, ss. 13, 16. But qu., if a constable can safely break open the doors of a dwelling-house in such case, without a magistrate's warrant. At least, it should seem, there must be some circumstances of extraordinary violence in the affray to justify him in so doing.

(v) Id. Ibid. sec. 15.

imprison him of his own authority for a reasonable time till the heat be over, and also afterwards detain him till he find such surety by obligation. But it seems that he has no power to imprison such an offender in any other manner, or for any other purpose; for he cannot justify the committing an affrayer to gaol till he shall be punished for his offence; and it is said that he ought not to lay hands on those who barely contend with hot words, without any threats of personal hurt and that all which he can do in such a case is to command them, under pain of imprisonment, to avoid fighting.(w)

It has been much doubted whether a private individual, who has seen an affray committed, may give in charge to a constable who has not; and whether such constable may, therefore, take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there was no danger of renewal (x) but it seems now to be settled *that a constable has no power *411] to arrest a man for an affray done out of his own view, without a warrant

from a justice of peace,(y) unless a felony be done, or likely to be done for it is the proper business of a constable to preserve the peace, not to punish the breach of it; and where a breach of the peace has been committed, and is over, the constable must proceed in the same way as any other person, namely, by obtaining a warrant from a magistrate.(z) It is said that he may carry those before a justice of peace who were arrested by such as were present at an affray, and delivered by them into his hands. (a) Where the plaintiff was imprisoned by a constable in a cell on a false charge of assault, and the defendant, another constable, on hearing the charge from a third constable, without inquiry into the facts, took the plaintiff before the magistrates, it was held that the defendant, in order to justify himself, was bound to show that the charge was well founded, and having failed to do so, was liable to an action of trespass.(b)

There is no doubt but that a justice of peace may and must do all such things

(w) Id. ibid. sec. 14.

(x) See Timothy v. Simpson, 5 Tyrw. 244, s. c.; 1 C., M. & R. 757. The Court did not decide the question. They observed, "the power of a constable to take into his custody, upon a reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now as to the authority of a constable, it is perfectly clear that he is not entitled to arrest in order himself to take sureties of the peace, for he cannot administer an oath: Sharrock v. Hannemer, Cro. Eliz. 375, Owen 105, s. c. nom. Scarrett v. Tanner. But whether he has that power in order to take before a magistrate, that he may take sureties of the peace, is a question on which the authori. ties differ. Lord Hale seems to have been of opinion that a constable has this power: 2 H. P. C. 89, and the same rule has been laid down at Nisi Prius by Lord Mansfield, in a case referred to in 2 East 306, and by Buller, J., in two others, one quoted in the same place, and another cited in 3 Campb. N. P. 421. On the other hand, there is a dictum to the contrary in Brooke's Abridgment, tit. Faux Imprisonment, which is referred to and adopted by Lord Coke in 2 Inst. 52; and Lord Holt, in 2 Lord Ray. 1301. Reg. v. Tooley, expresses the same opinion. Lord C. J. Eyre, in Coupey v. Henley, 1 Esp. C. N. P. 540, does the same, and many of the modern text-books state that to be the law: Burn's Just. 258, tit, Arrest, 26th edit.; Bac. Abr. (D.) tit. Trespass, 53; 2 East P. C. 506; Hawk. P. C. b. 2, c. 13, s. 8.

(y) Cook v. Nethercote, 6 C. & P. 741 (25 E. C. L. R.), Alderson, B.; Fox v. Gaunt, 3 B. & Ad. 798 (23 E. C. L. R.); Rex v. Curvan, R. & M. C. C. R. 132; Rex v. Bright, 4 C. & P. 387 (19 E. C. L. R.); Reg. v Light, D. & B. C. C. 332; Reg. v. Walker, Dears. C. C. 358. See these cases, post, p. 797; Manslaughter in Resisting Officers, and Coben v. Huskisson, 2 M. & W. 477; Baynes v. Brewster, 2 Q. & B. 375 (42 E. C. L. R.); Webster v. Watts, 11 Q. B. 311 (63 E. C. L. R).

(2) Cook v. Nethercote, supra. See the 2 & 3 Vict. c. 47, s. 65, the Metropolitan Police Act, as to the apprehension of persons on a charge of aggravated assault committed out of sight of a policeman.

(a) 1 Hawk. P. C. c. 63, s. 17, citing Lamb. 131, and Dalt. C. 8. Dalton says, "every private man, being present, may stay the affrayers till their heat be over, and then deliver them to the constables to imprison them till they find surety for the peace:" which seems to imply that they may take them before a justice, in order that they may find such sureties; and as it seems that the private individual might take them for that purpose before a justice, it is but reasonable that the constables should have the authority to take them likewise. See ante, p. 408.

(b) Griffin v. Coleman, 4 H. & N. 265.

for the suppression of an affray, which private men or constables are either enabled or required by the law to do: but it is said that he cannot, without a warrant, authorize the arrest of any person for an affray out of his view. Yet it seems clear, that in such case he may make his warrant to bring the offender before him, in order to compel him to find sureties for the peace. Also it seems that a justice of peace has a greater power over one who has dangerously wounded another in an affray, than either a private person or a constable; for there does not seem to be any good authority, that these have any power to take sureties of such an offender; but it seems certain that a justice of the peace has a discretionary power, either to commit him or to bail him till the year and day be past. It is said, however, that a justice ought to be very cautious how he takes bail, if the wound be dangerous; since, if the party die, and the offender do not appear, the justice is in danger of being severely fined, if upon the whole circumstances of the case he has been too favorable.(c)

*The punishment of common affrays is by fine and imprisonment; the [*412 measure of which must be regulated by the circumstances of the case for where there is any material aggravation, the punishment will be proportionably increased.(d)

*CHAPTER THE TWENTY-SEVENTH.

OF CHALLENGING TO FIGHT.

[*413

It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavor to provoke another to send a challenge, or to fight; as by dispersing letters, for that purpose, full of reflections, and insinuating a desire to fight. (a) And it will be no excuse for a party so offending, that he has received provocation for as, if one person should kill another, in a deliberate duel, under the provocation of charges against his character and conduct ever so grievous, it will be murder in him and his second; the bare incitement to fight, though under such provocation, is in itself a very high misdemeanor, though no consequence ensue thereon against the peace.(b) Where, after a prisoner had been convicted, his brother went to the house of the foreman of the jury, and challenged him to mortal combat, it was held that this was a high contempt of the Court before which the trial was held, and punishable as such.(c)

The offence of endeavoring to provoke another to send a challenge to fight was much considered in a modern case, in which it was held to be an indictable misdemeanor: and more especially as such provocation was given in a letter containing libellous matter, and as the prefatory part of the indictment alleged that the defendant intended to do the party bodily harm, and to break the King's peace.(d) And the sending such letter was held to be an act done towards the procuring the

(c) 1 Hawk. P. C. c. 63, s. 19. As maliciously wounding is now a felony under the 24 & 25 Vict. c. 100, s. 18, whether the case would have been murder or manslaughter, in case death had ensued, the proper course in such cases is to commit, unless the case be one of doubt. C. S. G.

(d) 4 Blac. Com. 145; 1 Hawk. P. C. c. 63, s. 20.

(a) 1 Hawk. P. C. c. 63, s. 3; 3 Inst. 158; 4 Black. Com. 150; Hick's case, Hob. 215. (b) Rex v. Rice, 3 East 581.

(e) Reg. v. Martin, 5 Cox C. C. 356, Pigot, C. B., and Pennefather, B. Martin was adjudged to a month's imprisonment, and to find sureties for keeping the peace for seven years.

(d) Rex v. Phillips, 6 East 464. The letter was: "Sir-It will, I conclude from the description you gave of your feelings and ideas with respect to insult, in a letter to Mr. Jones, of last Monday's date, be sufficient for me to tell you, that in the whole of the Carmarthenshire election business, as far as it relates to me, you have behaved like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make."

1 See Roscoe's Crim. Ev. 7th Am. edit., p. 379, note.

commission of the misdemeanor meant to be accomplished. (e) In this case, with respect to the intent of the defendant, the rule was adopted that where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved; though it is sufficient to allege it in the prefatory part of the indictment: but that where the act is in itself unlawful, the law infers an evil intent; and the allegation of such intent is merely matter of form, and need not be proved by extrinisic evidence on the part of the prosecution.(ƒ)

*It has been considered that mere words of provocation, as "liar” and *414] "knave," though motives and mediate provocation for a breach of the peace, yet do not tend immediately to the breach of the peace, like a challenge to fight, or a threatening to beat another.(g) But words which directly tend to a breach of the peace may be indictable; as if one man challenge another by words ;(h) and if it can be proved that the words used were intended to provoke the party to whom they were addressed to give a challenge, the case would seem to fall within the same rule. (i)

In a case where a person wrote a letter with intent to provoke a challenge, sealed it up, and put it into the twopenny post-office in a street in Westminster, addressed to the prosecutor in the city of London, by whom it was there received; Lord Ellenborough, C. J., held that the defendant might be indicted in Middlesex, as there was a sufficient publication in that county by putting the letter into the post-office there, with the intent that it should be delivered to the prosecutor elsewhere; and that if the letter had never been delivered, the defendant's offence would have been the same.(k)

It may be observed, before this subject is concluded, that sending a challenge is an offence for which the Court of King's Bench will grant a criminal information: but in a case where it appeared, upon the affidavits, that the party applying for an information had himself given the first challenge, the Court refused to proceed against the other party by way of information; and left the prosecutor to his ordinary remedy by action or indictment.(7) A rule to show cause why such an information should not be granted has been made, upon producing copies only of the letters in which the challenge was contained, such copies being sufficiently verified.(m)

The punishment for this offence, as a misdemeanor, is discretionary, and must be guided by such circumstances of aggravation or mitigation as are to be found in each particular case.(n)

(e) See ante, pp. 84, 85.

(g) King's case, 4 Inst. 181.

(f) Rex v. Phillips, 6 East 470 to 475.

(h) Reg. v. Langley, 6 Mod. 125; s. c. 2 Lord Raym. 1031.

(i) The rule given in 3 Inst. 158, is Quando aliquid prohibeter, prohibetur et omne per quod devenitur ad illud.

(k) Rex v Williams, 2 Campb. 506.

(1) Rex v. Hankey, 1 Burr. 316, where it it said that the Court held that it might have been right to have granted cross informations, in case each party had applied for an information against the other.

(m) Rex v. Chappel, 1 Burr. 402.

(n) Rex v. Rice, 3 East 584, in which case the defendant (though he had undergone some imprisonment, and though there were several circumstances tending materially to mitigate his offence) was sentenced to pay a fine of £100 and to be imprisoned for one calendar month, and at the expiration of that time to give security to keep the peace for three years, himself in £1000, and two sureties in £250 each, and to be further imprisoned till such fine was paid and such securities given. Hawkins, speaking of the pernicious consequences of duelling, says, upon which considerations persons convicted of barely sending a challenge have been adjudged to pay a fine of £100, and to be imprisoned for one month without bail, and also to make a public acknowledgment of their offence, and to be bound to their good behavior:" 1 Hawk. P. C. c. 63, s. 21.

66

*CHAPTER THE TWENTY-EIGHTH

OF DISTURBANCES IN PLACES OF PUBLIC WORSHIP.

[*415

IT has been already stated that affrays in a church or churchyard 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 ;(a) and upon this consideration all irreverent behavior in these places has been esteemed criminal by the makers of our laws. So that many disturbances occurring in these places are visited with punishment which, if they happened elsewhere, would not be punishable at all; as bare quarrelsome words: and some acts are criminal which would be commendable if done in another place; as arrests by virtue of legal process.(b) Several statutes have been passed for the purpose of preventing disturbances in places of worship belonging to the established church, and also in those belonging to congregations of Protestant Dissenters and Roman Catholics.1

By the 5 & 6 Edw. 6, c. 4, "if any person whatsoever shall, by words only, quarrel, chide, or brawl in any church or churchyard, that then it shall be lawful. unto the ordinary of the place where the offence shall be done, and proved by two lawful witnesses, to suspend every person so offending; that is to say, if he be a layman, ab ingressu ecclesiæ, and if he be a clerk, from the ministration of his office, for so long time as the said ordinary shall by his discretion think meet and convenient, according to the fault."(c)

By sec. 2, "if any person or persons shall smite or lay violent hands upon any other, either in any church or churchyard, then ipso facto every person so offending shall be deemed excommunicate, and be excluded from the fellowship and company of Christ's congregation."(d)

In the construction of this statute it has been held that the Ecclesiastical Court may proceed upon the two first sections, and is not to be prohibited; for though the offence mentioned in the second section of smiting in the church or churchyard is still an offence at common law, and the offender may be indicted for it, *yet, besides this, he may, by the act be ipso facto excommunicated.(e) No previous conviction is necessary in this case; though, if there be one, the [*416 ordinary may use it as proof of the fact. But if the Ecclesiastical Court proceeds for damages on either clause, the Court of King's Bench will prohibit them; for the proceedings of the Ecclesiastical Court are pro salute animæ. (f)

Cathedral churches, and the churchyards which belong to them, are within the statute.(g) And it will be no excuse for a person who strikes another in a church, &c., to show that the other assaulted him.(h) But churchwardens, or perhaps private persons, who whip boys for playing in the church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands on those who disturb the performance of any part of divine service, or turn them out of the church, are not within the meaning of the statute.(i)

(a) Ante, p. 407.

(b) 1`Hawk. P. C. c. 63, s. 23.

(e) By the 23 & 24 Vict. c. 32, s. 1, "it shall not be lawful for any ecclesiastical court in England or Ireland to entertain or adjudicate upon any suit or cause of brawling commenced after July 3, 1860, against any person not being in holy orders ;" and by sec. 4, the 5 & 6 Edw. 6, c. 4 is repealed "so far as relates to persons not in holy orders."

(d) The 9 Geo. 4, c. 31, repeals this Act as far as relates to the punishment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike as therein mentioned." The statute has three degrees of offences, per Lord Mansfield, C. J., 1 Burr. 242, and only the last, i. e., sec. 3, seems to be repealed. C. S. G. (e) Wilson v. Greaves, 1 Burr. 240.

(ƒ) Id. Ibid. And by Lord Mansfield, C. J., in the same case, "We proceed to punish, they to amend."

(g) Dethick's case, 1 Leon. 248.

(i) Id. Ibid. sec. 29.

(h) 1 Hawk. P. C. c. 63, s. 28.

1 Comm. v. Porter, 1 Gray 476; Hollingsworth v. State, 5 Sneed 518; Campbell v. Comm., 9 P. F. Smith 266.