the statute are, "that there shall be no restitution, &c. if the "person indicted have been in quiet possession for three years "next before the day of the indictment found ;" and here the defendant hath been in possession three years before the day of the indictment, though not three years before the indictment, inasmuch as he was ousted the same day. But if it be considered, the circumstance of finding the indictment on that day no way 1 Burr. 119. affects the merits of the case, or lessens the offence any more than if it were found on any other day, and that restitution must have been awarded if it had been found on another day, and that the mischief complained of in the preamble is, that persons were, by colour of such indictments, often turned out of their possessions which they had quietly enjoyed for three years next before such indictments found, which does not extend to the defendant in the present case, I rather incline to think, that restitution might be awarded to the prosecutor in this case; inasmuch as it clearly appears, that the defendant's possession hath not had three years uninterrupted continuance within the intent of the statute. As to the ELEVENTH POINT, viz. For what other causes such restitution may be stayed. Sect. 58. It seemeth to be settled at this day, that if the defendant tender a traverse of the force, which must be done in writing, and not by a bare denial of the force by parol, the justice ought not to make any restitution till the traverse be tried; in order whereunto he must award a venire facias, whereon a jury must be returned, on whose verdict the award of restitution ought to depend. 1 Keb. 343. 2 Keb. 49. 571. Sid. 284. Cases temp. p. 175. 1 Keb. 427. Sect. 59. It hath been resolved, that if such a jury find part 1 Sid. 97. 99. of the indictment to be true, and part of it to be false, yet if they find so much thereof to be true as will warrant a restitution, the justice ought to restore the party: as where, on an indictment of forcible entry and forcible detainer, the jury find that the entry was peaceful, and the detainer was only forcible. Sect. 60. As the justice is bound to stay the award of restitu- Savil, 68. tion, upon the defendant's tendering a traverse of the force, so it Aleyn, 78. hath also been said, that he ought not to make such an award in any case in the defendant's absence, without calling him to answer for himself; for it is implied by natural justice, in the construction of all laws, that no one ought to suffer any prejudice thereby, without having first an opportunity of defending himself. As to the TWELFTH POINT, viz. How such a restitution may be superseded before it is executed. Crom. 165. Sect. 61. There is no doubt but that the same justices, by Dyer, 187. whom a restitution is awarded upon an indictment of forcible Summary, 140. entry or detainer found before them, may also afterwards, upon Dalt. c. 81. 84. an insufficiency of the indictment appearing unto them, supersede the same before it is executed. And it hath also been said, Cro. Eliz. 915. that if such an indictment be taken, and restitution awarded by Yelv. 32. four or five justices, that two or even one of the same justices may supersede the execution thereof, as well as more or all of them. C. Eliz. 915. Summary, 141. Sayer, 176. Savil, 68. Sum. 140, 141. C. Eliz. 31. Noy, 119. Yelv. 99. C. Jac. 148, 149. B. 2. c. 37. 8. 61. Raymond, 85. 1 Keb. 343. 808. 2 Keb. 505. them. But it seems to be agreed, that no other justices, or other court whatsoever, hath such power, except the King's Bench. Sect. 62. However, it is certain, that a certiorari from the King's Bench is a supersedeas to such restitution; for every such certiorari has these words, coram nobis terminari volumus et non alibi; and consequently it wholly closes the hands of the justices of peace, and avoids any restitution which is executed after the teste, but does not bring the justices of the peace, &c. into a contempt, unless they proceed after the delivering thereof. As to the THIRTEENTH POINT, viz. How such restitution may be set aside after it is executed. Sect. 63. It is certain, that the justices of the King's Bench, having in general a superintendent power over all the proceedings whatsoever of justices of peace, may set aside any such restitution, if it shall appear to them to have been either awarded or executed against law; as where the indictment whereon it was grounded, being removed before them, appears to be insufficient, and thereupon is quashed; or the defendant traverses the force and gets a verdict in the King's Bench; or wherever it sufficiently appears that the justices of peace have been irregular in their proceedings, as by refusing to try a traverse of force tendered by the defendant, &c. Sect. 64. Yet if an indictment on these statutes be removed into the King's Bench, and the defendant, having been turned out of possession by the grant of restitution to the prosecutor by the justices of peace, traverse the force in the King's Bench, and then the offence be pardoned by a general pardon, the Court cannot proceed on the trial, notwithstanding the defendant would waive the benefit of the pardon; because it appears judicially, that the king can have no benefit of a fine from the defendant if the verdict pass against him, and the Court will never falsify an indictment, which is found by the oaths of twelve men, by bare affidavits; and consequently in this case the defendant can have no remedy to set aside the restitution by controverting the truth of the indictment. Sect. 65. Neither can a defendant in any case whatsoever, ex rigore juris, demand a restitution, either upon the quashing of the indictment, or a verdict for him on a traverse thereof, &c.; Summary, 141. for the power of granting a restitution is vested in the King's C. Eliz. 916. Bench only by an equitable construction of the general words of the statutes, and is not expressly given by those statutes; and is never made use of by that Court but when, upon consideration of the whole circumstances of the case, the defendant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor. Salk. 587. 2 Keb. 571. C. Eliz. Sect. 66. The Court of King's Bench hath been so favourable to one, who, upon his traverse of an indictment upon these For the form of statutes being found for him, hath appeared to have been unjustly the indictment, put out of his possession, that they have awarded him a re-restitution, notwithstanding it hath been shewn to the Court, that vide 2 Burn's Justice, 220. since since the restitution granted upon the indictment, a stranger hath recovered the possession of the same land in the lord's court. 4. Of Riots, Routs, and Unlawful Assemblies. In treating of Riots, Routs, and Unlawful Assemblies, I shall consider, FIRST, What shall be called a riot, rout, or unlawful assembly. 12 Mod. 510. SECONDLY, How they may be suppressed and punished by the common law. THIRDLY, How by statute. Salk. 594, 595. 87. Sect. 1. A Riot seems to be a tumultuous disturbance of the (a) Vide 1 Ven. peace, by three persons, (a) or more, assembling together of their 251. own authority, with an intent mutually to assist one another, Dalt. c. 85, 86, against any who shall oppose them, in the execution of some Crom. 61, &c. enterprize of a private nature, and afterwards actually executing Pulton, 25, &c. the same in a violent and turbulent manner, to the terror of the 3 Inst. 176. people, whether the act intended were of itself lawful or unlaw- Summary, 137. ful. (b) 3 Mod. 141. (b) See Salk. 594. Popham, 202. 1 Ld. Ray. 484. 12 Mod. 262. 509. Strange, 196. 11 Mod. 113. 116, 117. 1 Black. 350. For the better understanding whereof, I shall consider the following particulars : 1. How far such an assembly may become riotous through the want of legal authority expressed or implied, or be excusable by reason of such authority. 2. How far the intention with which the parties assemble together must be unlawful. 3. With what kind of violence or terror the intended enterprize must be executed. 4. How far the grievance intended to be redressed must be of a private nature. 5. Whether the unlawful execution of an act in its own nature lawful may not make an assembly riotous. As to the FIRST POINT, viz. How far such an assembly may become riotous through the want of legal authority expressed or implied, or be excusable by reason of such authority. inserted instead Sect. 2. It seems, That wherever more than three persons (c) use force and violence in the execution of any design what- (e) The words 66 more than ever wherein the law does not allow the use of such force, all who three persons," are concerned therein are rioters. (d) But in some cases wherein are three times the law authorizes force, it is not only lawful, but also commend- over (s.2. 5.7.) able to make use of it; as for a (e) sheriff or (ƒ) constable, or per- of " three perhaps even for a private (g) person, to assemble a competent num- sons or more" ber of people in order with force to suppress rebels, or enemies, or an instance, that rioters, and afterwards with such force actually to suppress them; in a variety of or for a justice of peace, who has a just cause to fear a violent equally attentive. 4 Burn. 88. Popham, 121. (ƒ) 3 H. 7.10. VOL. I. matter it is impossible for the resistance, mind of man to 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 (a) 2 Inst. 193. (a) sheriff, or other minister of justice, having the execution of the king's writs, and being resisted in endeavouring to execute the same, to raise such a power as may effectually enable them to overpower any such resistance; yet it is said not (b) 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 violence therein. (b) 3 Inst. 161. 2 Inst. 193. Hob, 62. 264. Lamb. 179, &c. 6 Mod. 43. Skinner, 118. As to the SECOND POINT, viz. How far the intention with which such persons assemble together must be unlawful. Sect. 3. It seems agreed, that if a number of persons being met together at a fair, or market, or church-ale, or any other Crom. 61. 62. lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, they are not guilty of a riot, but of a sudden affray only, 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 concerning it. Yet it is said that if persons innocently assembled together, do afterwards, upon a dispute happening to arise among them, form themselves into parties, with promises of mutual assistance, and then make an affray, 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 together had been on such a design: however, it seems 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 inclosure, 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 no way extenuated by their having met at first upon another. Also it seems to be certain, that if a person, seeing others actually engaged in a riot, do join himself unto them, and assist 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 unto them, with an intention to second them in the execution of their unlawful enterprize; and it would be endless, as well as superfluous, to examine whether every particular person engaged in a riot were in truth one of the first assembly, or actually had a previous knowledge of the design thereof. Vide Rex v. 6 Modern, 43. See the case of 3d edit. 415; and the Coalheavers' Case, Cases in Crown Law, 61, Dalt. c. 85. Lamb. 175. 3 Inst. 176 As to the THIRD POINT, viz. With what kind of violence or terror the intended enterprize must be executed. Sect. 4. It hath been holden, that it ought to be accompanied with some offer of violence, either to the person of a man or to his possessions, as by beating him or forcing him to quit the Dossession of his lands or goods, &c. And from hence it seems seems to follow, that persons riding together on the road with unusual weapons, or otherwise assembling together in such a manner as is apt to raise a terror in the people, without any offer of violence to any one in respect either of his person or possessions, are not properly guilty of a riot, but only of an unlawful assembly. 6 Mod. 141. 3 Burr. 1268. Sect. 5. However, it seems to be clearly agreed, that in every (a) Lamb. 178. riot there must be some such circumstances either of actual force Dalt. c. 871. or violence, or at least of an apparent tendency thereto, as are 3 H. 7. 1. naturally apt to strike a terror into the people; as the shew (a) 2 Keb. 558 of armour, threatening speeches, or turbulent gestures; for every Con. 1 Roll. such offence must be laid to be done in terrorem populi. (b) And 109. from hence it clearly follows, that assemblies at wakes, or other 11 Mod. 116. festival times, or meetings for exercise of common sports or di- Lamb. 179. versions, as bull-baiting, wrestling, and such like, are not riotous. Vide the And from the same ground also it seems to follow, that it is C.J. in the case opinion of Holt, possible for more than three persons (c) to assemble together, of the Queen v. with an intention to execute a wrongful act, and also actually to Soley, 11 Mod. perform their intended enterprize, without being rioters; as if a (e) It should competent number of people assemble together, in order to be " three percarry off a piece of timber to which one of the hath a pretended right, and afterwards do carry it away without any to section 2. threatening words, or other circumstances of terror. And from Pulton, 25. the same ground it seems also to follow, that persons assembled 3 Keb. 578. together in a peaceful manner to do a thing prohibited by sta- Lambard, 178. tute, as to celebrate mass, &c. and afterwards peacefully per- Crompton, 62. forming the thing intended, cannot be said to be rioters; for Quare, there seems to be no reason why an assembly should become riotous barely for doing a thing contrary to the statute, any more Con. 1 Mod. 13. than for doing a thing contrary to common law. company As to the FOURTH POINT, viz. How far the grievance intended to be redressed must be of a private nature. Sect. 6. It seems agreed, that the injury or grievance complained of and intended to be revenged or remedied by such an assembly, must relate to some private quarrel only; as the inclosing 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, no way concerning the public; for wherever the intention of such an assembly is to redress public grievances, as to pull down all inclosures in general, or to reform religion, or to remove evil counsellors from the king, &c. if they attempt with force to execute such their intentions, they are, in the eye of the law, guilty of levying war against the king, and consequently of high treason, as appears from Chapter 2, section 25. As to the FIFTH POINT, viz. Whether the execution of an act in its own nature lawful, may make an assembly riotous. 115. sons or more:" vide note (c) Hobart, 91. 6 Mod. 141. 2 Keb. 558. 1 Ven. 369,380. 11 Mod. 116. Sect. 7. It hath been generally holden, that it is no way mate- Quære; and vide Salk. 594, rial whether the act intended to be done by such an assembly be of 595. itself lawful or unlawful; from whence it follows, that if more than Crom. 64. 66. LL 2 three Dalton, c. 87. |