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cise, to the great terror and alarm of his majesty's peaceable and loyal subjects, and the imminent danger of the public peace;" it is enacted," that all meetings and assemblies of persons for the purpose of training or drilling themselves, or of being trained or drilled to the use of arms, or for the purpose of practising military exercise, movements, or evolutions, without any lawful authority from his majesty, or the lieutenant, or two justices of the peace of any county or riding, or of any stewartry, by commission or otherwise, for so doing, shall be and the same are hereby prohibited, as dangerous to the peace and security of his majesty's liege subjects and of his government; and every person who shall be present at or attend any such meeting or assembly, for the purpose of training and drilling any other person or persons to the use of arms, or the practice of military exercise, movements, or evolutions, or who shall train or drill any other person or persons to the use of arms, or the practice of military exercise, movements, or evolutions, or who shall aid or assist therein, being legally convicted thereof, shall be liable to be transported for any term not exceeding seven years, or to be punished by imprisonment not exceeding two years, at the discretion of the court in which such conviction shall be had; and every person who shall attend or be present at any such meeting or assembly as aforesaid, for the purpose of being, or who shall at any such meeting or assembly be trained or drilled to the use of arms, or the practice of military exercise, movements, or evolutions, being legally convicted thereof, shall be liable to be punished by fine and imprisonment not exceeding two years, at the discretion of the court in which such conviction shall be had.”
2. Enacts, “ that it shall be lawful for any justice of the peace, or for any constable or peace officer, or for any other person acting in their aid or assistance, to disperse any such unlawful meeting or assembly as aforesaid, and to arrest and detain any person present at, or aiding, assisting, or abetting any such assembly or meeting as aforesaid; and it shall be lawful for the justice of the peace who shall arrest any such person, or before whom any person so arrested shall be brought, to commit such person for trial for such offence, under the provisions of this act, unless such person can and shall give sufficient bail for his appearance at the next assizes or general or quarter sessions of the peace, to answer to any indictment which may be preferred against him for any such offence against this act, in England and Ireland; and in Scotland every such person shall be arrested and dealt with according to the law and practice of that part of the united kingdom in the case of a bailable offence.”
0 3. Enacts, “ that the sheriffs depute and their substitutes, stewards depute and their substitutes, justices of the peace, magistrates of royal burghs, and all other inferior judges and magistrates, and also all high and petty constables, or other peace officers of any county, stewartry, city, or town within that part of the united kingdom called Scotland, shall have such and the same powers and authorities for putting this present act in execution within Scotland, as the justices of the peace and other magistrates and peace officers and constables aforesaid respectively have, by virtue of this act, within and for other parts of the united kingdom.”
4. Provides and enacts, “ that nothing in this act contained shall extend to prevent any prosecution, by indictment or otherwise, for any thing which shall be an offence within the intent and meaning of this act, and which might have been so prosecuted if this act had not been made, unless the offender shall have been prosecuted for such offence under this act, and convicted or acquitted of such offence.”
5. Enacts, “ that any action or suit which shall be brought or commenced against any justice or justices of the peace, constable, peace officer, or other person or persons, in that part of Great Britain called England or in Ireland, for any thing done or acted in pursuance of this act, shall be commenced within six calendar months next after the fact committed, and not afterwards; and the venue in every such action or suit shall be laid in the proper county where the fact was committed, and not elsewhere; and the defendant or defendants in every such action or suit may plead the general issue, and give this act and the special matter in evidence at any trial to be had thereupon; and if such action or suit shall be brought or commenced after the time limited for bringing the same, or the venue shall be laid in any other place than as aforesaid, then the jury shall find a verdict for the defendant or defendants; and in such case, or if the jury shall find a verdict for the defendant or defendants upon the merits, or if the plaintiff or plaintiffs shall become nonsuit, or discontinue his, her, or their actions after appearance, or if upon demurrer judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall have double costs, which he or they shall and may recover in such and the same manner as any defendant can by law in other cases." . 6. Enacts, “ that every action or suit which shall be brought or commenced against any person or persons in Scotland, for any thing done or acted in pursuance of
(D 9.) What a rout. A rout (from the German word rot) is, (p) when they assemble for an unlawful design, and move in it, but do not execute it. Vide Dalt. c. 136.
(D 10.) What an unlawful assembly. An unlawful assembly is, (q) when three or more assemble to do an unlawful act (r) but do nothing. (s) H. P. C. 137.
this act, shall in like manner be commenced within six calendar months after the fact committed, and not afterwards, and shall be brought in the court of session in Scotland; and the defender or defenders may plead that the matter complained of was done in pursuance of this act, and may give this act and the special matter in evidence; and if such action or suit shall be brought or commenced after the time limited for bringing the same, then the same shall be dismissed ; and in such case, or if the defender or defenders shall be assoilzied, or the pursuer or pursuers shall suffer the action or suit to fall asleep, or a decision shall be pronounced against the pursuer or pursuers upon the relevancy, the defender or defenders shall have treble costs or expences, which he or they shall and may receive in such and the same manner as any defender can by law recover costs or expences in other cases."
7. Provides and enacts, “ that no person shall be prosecuted by virtue of this act for any thing done or committed contrary to the provisions herein-before contained, unless such prosecution shall be commenced within six calendar months after the offence committed.”
(p) 1. By some books the notion of a rout is confined to such assemblies only, as are occasioned by some grievance common to all the company; as the inclosure of land in which they all claim a right of common. Russell, 361.- 2. But according to the general opinion, it seems to be a disturbance of the peace by persons assembling together with an intention to do a thing, which if it be executed, will make them rioters, and actually making a motion towards the execution of their purpose. Ibid. — 3. In fact, it generally agrees, in all the particulars, with a riot, except only in this, that it may be a complete offence without the execution of the intended enterprise. Ibid. i Hawk. C. 65. s. 8. – 4. And it seems, by the recitals in several statutes, that if people assemble themselves, and afterwards proceed, ride, go forth, or move by instigation of one or several conducting them, this is a rout; inasmuch as they move and proceed in rout and number. 19 Vin. Abr. Riots. (A).
(9) An unlawful assembly, at common law, is, according to the common opinion, a disturbance of the peace by persons barely assembling together with an intention to do a thing, which, if it were executed, would make them rioters, but neither actually executing it, nor making a motion towards its execution. Mr. Serjeant Hawkins, however, thinks this much too narrow an opinion; and that any meeting of great numbers of people with such circumstances of terror as cannot but endanger the public peace, and raise fears and jealousies among the king's subjects, seems properly to be called an unlawful assembly. As where great numbers complaining of a common grievance meet together armed in a warlike manner, in order to consult together concerning the most proper means for the recovery of their interests; for no one can foresee what may be the event of such an assembly. Russell, 362. i Hawk. C. 65. s. 9.
(r) 1. An assembly of a man's friends for the defence of his person against those who threaten to beat him, if he go to such a market, &c. is unlawful, for he who is in fear of such insults, must provide for his safety, by demanding the surety of the peace against the persons by whom he is threatened, and not make use of such violent methods, which cannot but be attended with the danger of raising tumults and disorders to the disturbance of the public peace. But an assembly of a man's friends in his own house, for the defence of the possession of it against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is indulged by law; for a man's house is looked upon as his castle. Russell, 362. i Hawk. c. 65. s. 9. 10. 19 Vin. Abr. Riots, (A) 5. 6. 11 Mod. 116. - 2. He is not, however, to arm himself and assemble his friends in defence of his close. Russell, 363.
(s) 1. There may be an unlawful assembly, if the people assemble themselves together for an ill purpose contra pacem, though they do nothing. Br. Riots, pl. 4. (D 11.) What not. But it will not be a riot, if three or more assemble to do a lawful act, and (11) they do it in a lawful manner : (x) as, to remove a nuisance. Vide Dalt. c. 137. (y)
Or, to defend a man in his house against violence. Vide Dalt. C. 137.
So, if the servants of the owner of a house enter by force, by command of their master, when the servants of him, who has the custody of the house, oppose them. R. Mo. 787.
So, if they assemble to do an act which seems lawful; as, to remove timber to which they claim title. Vide Dalt. c. 137. (2)
So, if divers, clamore riotosé, prevent an election of officers in a borough; it is not a riot, if the right of election be not shewn: for to make a riot, there ought to be an unlawful act, and an unlawful assembly. R. Sal. 594.
If they break the door of the Guildhall, if it is not shewn whose house it was; for perhaps it belonged to the defendants. R. Sal. 594.
- 2. Ld. Coke speaks of an unlawful assembly as being when three or more assemble themselves together to commit a riot or rout, and do not do it. 3 Inst. 176.
(u) i. This proviso is a necessary branch of the proposition. — 2. For 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. 3. 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. Russell, 353. i Hawk. C. 65. 6. 7. 12 Mod. 648.
(s) In some cases in which the law authorises force, it is not only lawful, but also commendable, even perhaps 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 endeavouring to execute them, to raise such a power as may effectually enable them to overcome 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 violence. Russell, 351. 1 Hawk. c. 65. $. 2. 19 Vin. Abr. Riots (A) 4.
(y) 1. And this may be done before any prejudice is received from the nuisance, and they may also enter into another man's ground for the purpose. — 2. 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. Dalt. c. 137. 5 Burn's Just. Riot, s. 1. – 3. But 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. Russell, 354. Dalt. c. 137. 5 Burn's Just. Riot, s. 1.
(2) 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 a better right to the thing carried away, and the act, therefore, is wrong, and unlawful. i Hawk, C. 65, s. 5. 11 Mod. 117. 5 Burn's Just. Riot, s. 1. Vol. IV. Bb
So, if divers assemble peaceably, upon a lawful occasion, it will not be a riot, though a sudden affray (a) happens. Mod. Ca. 43. R. Sal. 595. (6)
So, if a man, accompanied with his servants, does an outrage; it is not a riot in the servants, who did not intend mischief: for none shall be a rioter, except him who acts, when the assembly was not with a bad intent. Sal. 595. (c)
Though he had more servants than he usually had. Vide Dalt. c. 136.
If a jury or posse comitatus quarrel among themselves. Vide Dalt. c. 136.
If travellers quarrel, and beat one of the company.
So it is not a riot, if several assemble at an alehouse in friendship; though they ought not to do it. Vide Dalt. c. 136.
(a) 1. Affrays are the fighting of two or more persons, in some public place, to the terror of his majesty's subjects. 4 Blk. Com. 144. 3 Inst. 158. i Burn's Just. Affray, I.- 2. The derivation of the word affray, is from the French effrayer, to terrify; and as in a legal sense it is taken for a public offence to the terror of the people, 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 place, out of the hearing or seeing of any except the parties concerned; in which case it cannot be said to be to the terror of the people. Russell, 388. i Hawk, c. 63. s. 1. - 3. And there may be an affray, which will not amount to a riot, though many persons be engaged in it; as if a number of persons, being met together at a fair or market, or on any other lawful or innocent occasion, happen on a sudden quarrel to fall together by the ears, it seems agreed that they will not be guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it; and this on the ground of the design of their meeting being innocent and lawful, and the subsequent breach of the peace happening unexpectedly without any previous intention. Russell, 388. 1 Hawk. C. 65. s. 3.
(6) 1. i Hawk. c. 65. 6. 3. - 2. For to make a riot, the violence and tumult must in some degree be premeditated. Russell, 354. – 3. But if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous, 4. 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 make a great noise so as to render the actors entirely inaudible, though without offer ing personal violence to any individual, or doing any injury to the house, they are guilty of a riot. 2 Camp. 358. — 4. So though the parties may have assembled for an innocent purpose in the first instance, yet if they afterwards, upon a dispute happening to arise 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 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 in no way extenuated by their having met at first upon another. Russell, 355. i Hawk. c. 65. s. 3.
(c) If three or more, being lawfully assembled, quarrel, and the party fall on one of their own company, this is no riot; but 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 no more. 19 Vin. Abr. Riots, &c. (A) 15. 2 Salk. 595.
Or, for sport; as, for football, (d) bull-baiting, bear-baiting, &c. Vide Dalt. c, 136. (e)
Or, for dancing, bowls, cards, dice, &c. though they are not lawful games. Vide Dalt. 136.
So, if three are indicted for a riot, and one only found not guilty, all ought to be discharged. R. Sal. 593.
Though the others made a battery, they shall not be punished for it: for the offence charged was a riot. Sal. 594.
(D 12.) How suppressed. By one justice of peace. By the (f) st. 34 Ed. 3. 1. Justices of peace shall have power to restrain all evil doers, rioters, &c. and to arrest, pursue, and punish them according to law. Vide Justices of Peace, (B 9.) (g)
And therefore, if there be a riot, rout, or unlawful assembly, every justice of peace may require the offender to find sureties for the peace, or good behaviour, and commit him upon refusal. Vide Dalt. c. 82. Or may order another to arrest him. Vide Dalt. c. 82.
(D 13.) By more justices. So, by the st. 13 H. 4. If a riot be made, justices of peace, or two of them, with the sheriff, under-sheriff, and posse (h). if need be, shall arrest them, and record what they find done in their presence; by which
(d) 1. In 2 Chit. Crim. L. 494., there is an indictment said to have been drawn in the year 1797, by a very eminent pleader, for the purpose of suppressing an antient custom of kicking about foot-balls on a Shrove Tuesday, at Kingston-upon-Thames; the first count of which, 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. -2. Coke C. J. says, that the stage-players may be indicted for a riot and unlawful assembly. i Rol. Rep. 109. - 3. And Dalton, citing Rolle, says, that if such players by their shews, 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. Russell, 352, n. 19 Vin. Abr. Riots, (A 8.) (c) So assemblies at wakes, or other festival times. i Hawk, c. 65. s. 5.
B) 1. By the common law, the sheriff, under-sheriff, constable, or any other peaceofficer, may and ought to do all that in them lies, towards the suppressing of a riót, and may command all other persons to assist them; and by the common law also, any private person may lawfully endeavour to appease such disturbances by staying the persons engaged from executing their purpose, and also by stopping others coming to join them. i Hawk. c. 65. s. 11. - 2. It has been holden also, that private persons may arm themselves in order to suppress a riot. Poph. 121. Kel. 76.
3. Whence it seems clearly to follow, that they may also make use of arms in suppressing it if there be a necessity.' Russell, 384. - 4. However it may be very hazardous for private persons to proceed to these extremities; and such violent methods seem only proper against such riots as savour of rebellion. i Hawk. c. 65. s. 11. – 5. But if a felony be about to be committed, the interference of private persons will be justifiable; for a private person may do any thing to prevent the perpetration of a felony. 2 B. & P. 265. – 6. In the riots which took place in the year 1780, this matter was much misunderstood, and a general persuasion prevailed, that no indifferent person could interpose, without the authority of a magistrate; in consequence of which much mischief was done, which otherwise might have been prevented. 2 B. & P. 265.
(g) Vide supra, (D 8.) (D 10.), in notis.
(k) In the interpretation of this statute it has been holden, that all persons, noblemen and others, except women, clergymen, persons decrepit, and infants under fifteen, are bound to attend the justices in suppressing a riot, upon pain of fine and imprisonment; and that any battery, wounding, or killing the rioters, that may happen in suppressing the riot, is justifiable. Russell, 385. 4 Blk. Com. 146. 147 T Hale, 495.
B b 2