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Sect. 3. However, it seems the better opinion, that no one (a) C. Car. 498, ought to be bound (a) to the good behaviour for any rash, 499.
quarrelsome, or unmannerly words, unless they either directly (6) C. Eliz. 86. Moor, 249.
• tend to a breach of the peace, or to scandalize the government, 2 Roll. 299. by abusing those who are intrusted by it with the administration 227.
of justice, or to deter an officer from doing his duty; and therePalmer, 126.
fore it seems, that he () who barely calls another rogue, or rascal, or teller of lies, drunkard, &c. ought not, for such cause, to be bound to the good behaviour.
Sect. 4. However, I cannot find any certain precise rules for the direction of the magistrate in this respect, and therefore am inclined to think, that he has a discretionary power to take such surety of all those whom he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous, as of those who sleep in
the day, and go abroad in the night, and of such as keep susDalt, 75. 1 Roll. 150. picious company, and of such as are generally suspected to be 2 Ven. 22, 23, robbers, &c. and of eve-droppers, and common drunkards, 24.
and all other persons, whose misbehaviour may reasonably be intended to bring them within the meaning of the statute, as persons of evil fame, who, being described by an expression of so great latitude, seem in a great measure to be left to the judgment of the magistrate. But if he commit one for want of sureties he must shew the cause, &c. with convenient certainty. (1)
As to the SECOND Point, viz. For what misbehaviours such
a recognizance shall be forfeited. . Palm. 139, 130.
Sect. 5. It is laid down as a general rule in the argument of C. Car. 499. Stamp and Hide's case, that whatever will be a good cause to
bind a man to his good behaviour, will forfeit a recognizance for it. Yet this is since denied in Hayward's case; and indeed does by no means seem to be maintainable, because the statute, in ordering persons of evil fame to be bound in this manner, seems in many cases chiefly to regard the prevention of that mischief which they may justly be suspected to be likely to do; and in that respect requires them to secure the public from that danger which may probably be apprehended from their future be
haviour, whether any actual crime can be proved upon them, or 13 H. 7. 10. not; and it would be extremely hard in such cases to make perDalt. c. 75.
sons forfeit their recognizance, who yet may justly be compellable to give one, as those who keep suspicious company, or those who spend much money idly without having any visible means of getting it honestly, or those who lie under a general suspicion of being rogues, &c.
(1) Security for good behaviour may be taken: For using opprobrious terms in a court of justice. 1 Lev. 107. Accusing justices of ignorance in the excise laws. 1 Vent. 16. Publishing an obscene book. Fort. 193. For exciting discontents in the minds of the people. 2 Vent. 24. For offering medicines to destroy a child in the womb. Cro. Eliz. 449. For obstructing another on his necessary way to a court of justice. 2 Lill. Reg. 649. For disturbing a licensed preacher. 1 Mar. s. 2.3. For unlawful fishing or hunting. 5 Eliz, c. 21.
For neglecting church a month. 23 Eliz. c. 1. For hunting or stealing deer or conies. 1 Jac, 1. C. 18. sed vide 16 Geo. 3. c. 30. And it is a usual part of the judgment in a misdemeanour. 4 Bac. Ab. 698. But a justice of a peace cannot compel the security upon a general information. Str. 16. And whether a person taken upon the warrant of a secretary of state for a libel shall give security for his good behaviour, seems unsettled. i Wils. 29. sed vide 2 Wils. 160, and for a very full account of this title, 5 Burn. 293. Chetwynd's Ed,
2 Roll. 228.
. Sect. 6. However, it seems that such a recognizance shall not 2 H.7.2. only be forfeited for such actual breaches of the peace, for which C. Eliz. 86.
Moor, 249.. a recognizance for the peace may be forfeited, but also for some others, for which such a recognizance cannot be forfeited; as for 150. 199. going armed with great numbers to the terror of the people, or speaking words tending to sedition, &c. and also for all such ac- c. Car. 499. tual misbehaviours which are intended to be prevented by such Codb: 699: 99. a recognizance, but not for barely giving cause of suspicion of Lamb. 116. what perhaps may never actually happen.
C. Jac. 412. It may be discharged on motion on producing prosecutor's consent, verified by affidavit. Hardwicke's cases, 58. Or consenting by Counsel. 1 Burr. 703.
2. Affrays. In treating of affrays, I shall consider, 1. What shall be said to be an affray. 2. How far it may be suppressed by a private person. 3. How far by a constable. :. 4. How far by a justice of peace.
5. In what manner the several kinds of affrays may be punished.
As to the First Point, viz. What shall be said to be an affray.
Sect. 1. It is said, that the word “ affray” is derived from the 3 Inst. 158. French word effraier, to terrify, and that, in a legal sense, it is Dalt. c. 8. taken for a public offence to the terror of the people. From this definition 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 placé, out of the hearing or seeing of any, except the parties concerned ; in which case it cannot be said to be to the Lamb. 125, terror of the people; and for this cause such a private assault 6 10 seems not to be inquirable in a court leet, as all affrays certainly 8 Ed. 4. 5. are, as being common nuisances. Sect. 2. Also it is said, that no quarrelsome or threatening 23 Ed. 4. 45..
Dalt. c. 8. words whatsoever shall amount to an affray; and that no one can justify laying his hands on those who shall barely quarrel with ble, 14. angry words, without coming to blows; yet it seemeth, that the 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. Sect. 3. Also it is certain, that it is a very high offence to Pophain, 158.
3 Inst. 158. challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endea- 1 Keb. 694. vour to provoke another to send a challenge, or to fight; as by Hob. 120. 215.
? 2 R. Abr. 78. dispersing letters to that purpose, full of reflections, and insinuat- i ing a desire to fight, &c. (1)
Carr & Hankey. Sect.
a private assault 126.
1 Sid. 186.
1 Burr. 316.
(1) Challenging another to fight on account of money won by gaming is, by st. 9 Anne, c. 14.
made a forfeiture of all the personal estate and imprisonment for two years: vide ante, p. 116.
Lamb. 126. Sect. 4. But granting that no bare words, in the judgment of 3 Inst. 160.76. law, carry in them so much terror as to amount to an affray, yet it 2 R. Abr. 78. Summary, 137.
seems certain, that in some cases there may be an affray where there is no actual violence; as where a man arms himself 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 many statutes.
By 2 Edw. 3. it is enacted, “ That no man, great nor small “ of what condition soever he be, except the king's servants in “ his presence, and his ministers in executing of the king's pre“ cepts, or of their office, and such as be in their company assist“ ing them, and also upon a cry made for arms to keep the peace, " and the same in such places where such acts happen, be so “ hardy to come before the king's justices, or other of the king's “ ministers doing their office, with force and arms, nor bring no “ force of affray of peace, nor to go nor ride armed by night nor “ by day, in fairs, markets, nor in the presence of the justices or “ other ministers, nor in no part elsewhere, upon pain to forfeit “ their armour to the king, and their bodies to prison, at the “ king's pleasure. And that the king's justices in their presence, “ sheriffs, and other ministers in their bailiwicks, lords of fran“ chises, and their bailiffs in the same, and mayors and bailiffs of “ cities and boroughs, within the same cities and boroughs, and “ borough-holders, constables and wardens of the peace within “ their wards, shall have power to execute this act: and that the “ justices assigned, at their coming down into the country, shall “ have power to inquire how such officers and lords bave exer“ cised their offices in this case, and to punish them whom they “ find that have not done that which pertained to their offices ;" and this statute is further enforced by 7 Rich. 2. c. 13. and 20. Rich. 2. c. 1.
heir bailices in the son, at their
And in the exposition of it the following points have been holden:
F. N. B. 249.
Sect. 5. First, That any justice of peace, or other person who 3 Inst. 161.
is empowered to execute this statute, may proceed therèon, either Dalt. c. 22. ex officio, or by force of a writ out of chancery, formed upon the Lamb. 168, &c. statute, and that if he find any person in arms contrary to the Dalis. 23. 2 Buls. 330.
form of the statute, he may seize the arms, and commit the offender to prison; and that he ought also to make a record of his whole proceeding, and certify the same into chancery, where he proceeds by force of the said writ, or into the exchequer, where he proceeds ex officio.
C. Eliz. 294. Con. Lamb. 170.
Sect. 6. SECONDLY, That where a justice of peace, &c. proceeds upon the said writ, he may not only imprison those whom he shall find offending against the statute in his own view, but also those who shall be found, by an inquest taken before him, to have offended in such manner in his absence. And I do not see why he may not do the same where he proceeds ex officio ; for seeing
the said writ bath no other foundation but the said statute, and is the most authentic explication thereof, it seemeth that the rules therein prescribed should be the best direction for all proceedings upon that statute.
Sect. 7. THIRDLY, That the under-sheriff may execute the C. Eliz, 294. said writ, being directed to the sheriff, if it name him only by the name of his office, and not by his proper name, and do not expressly command him to act in his proper person.
Sect. 8. FOURTHLY, That a man cannot excuse the wearing 24 Ed. 3. 33. such armour in public, by alleging that such a one threatened 21 H. 7. 39. him, and he wears it for the safety of his person from his assault.
bo Con. 2 Roll. 78. But it hath been resolved, that no one shall incur the penalty of % H.7. 39. the said 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.
Sect.9. FITFHLY, That no wearing of arms is within the mean- 3 Mod. 117. ing of this statute, unless it be accompanied with such circum- 2 Bulst. 330. stances 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 this 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. And from the same ground it also Crom. 64. follows, that persons armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute, because they do nothing in terrorem populi.
Sect. 10. Sixthly, That no person is within the intention of Pop. 121, 122. the said statute, who arms himself to suppress dangerous rioters, rebels, or enemies, and endeavours to suppress or resist such disturbers of the peace or quiet of the realm; for persons who so arm themselves seem to be exempted out of the general words of the said statute, by that part of the exception, in the beginning thereof, which seems to allow all persons to arm themselves, upon a cry made for arms, to keep the peace, in such places where such acts happen. . .
As to the Second Point, viz. How far an affray may be suppressed by a private person.
Sect. 11. It seems agreed, that any one who sees others fight- Lan ing may lawfully part them, and also stay them till the heat be 3 Inst. 158. over, and then deliver them to the constable, who may carry them 2 Inst. 52.
* 22 E. 4. 44. before a justice of peace, in order to their finding sureties for the Da peace. Also it is said, that any private person may stop those Lamb. 131. whom he shall see coming to join either party; and from hence it Infra, s. 17. seems clearly to follow, that if a man receive a hurt from either party in thus endeavouring to preserve the peace, he shall have his remedy by an action against him. Also upon the same ground, 3 Inst. 138.
hos Laib. 131. it seems equally reasonable, that if he unavoidably happen to hurt either party in thus doing what the law both allows and commends,
alt. c. 8.
Dalt c. 8.
Dalt. c. 8.
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. Lamb, 131. Sect. 12. However it seems clear, that if either party be danger
• 8 ously wounded in such an affray, and a stander-by, endeavouring 3 Inst. 158. B. E. Imp. 35. to arrest the other, be not able to take him without hurting, or
even wounding him, yet he is no way liable to be punished for 10 H.7.20.
the same, inasmuch as he is bound, under pain of fine and impri-, sonment, 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, by whom he either is to be bailed or committed, &c.
2 Inst, 52.
As to the Third Point, viz. How far an affray may be sup
pressed by a constable. 3 Inst. 158. Sect. 13. It seems agreed, that a constable is not only imLamb. 132, 133. powered, as all private persons are, to part an affray which Dalt. c. 8. 3 H. 7. 10.
happens in his presence, but is also bound at his peril to use his best endeavours to this purpose ; 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.
B. SU 36.
5 H. 7.6.
Lamb. 132, 133. Sect. 14. And it is said, that if a constable see persons either Dalt.c. 1. 8. actually engaged in an affray, as striking, or offering to strike, or
drawing their weapons, &c. or upon the very point of entering C. Eliz. 375. upon an affray, as where one shall threaten to kill, wound, or beat 9 Ed. 4. 26. another, he may either carry the offender before a justice of the Moor, 284.
peace, to the end that such justice may compel him to find sure3 H. 4. 9. 22 E. 4. 35. ties for the peace, &c. or he may imprison him of his own autho10 Ed. 4. 18. rity for a reasonable time, till the heat shall be over, and also after
wards detain him till he find such surety by obligation. But it Sav. 97, 98.
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 com
mand them under pain of imprisonment to avoid fighting. 5 11. 7. 6.
Sect. 15. But he is so far intrusted with a power over all 1 Roll. 238. actual affrays, that though he himself is a sufferer by them, and 2 Bulst. 329.
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 no
way, a party. 13 Ed. 4.9. Sect. 16. And if an affray be in a house, the constable may 7 Ed. 3. 12. break open the doors to preserve the peace; and if affrayers fly Dalt. c. 8. 67. Lamb. 133, 134.
4. to a house, and he follow with fresh suit, he may break open the
doors to take them.