to which the pillory in very enormous cafes has been fometimes fuperadded. And by the ftat. 13 Hen. IV. c. 7. any two juftices, together with the fheriff or under fheriff of the county, may come with the poffe comitatus, if need be, and fupprefs any fuch riot, aflembly, or rout, arreft the rioters, and record upon the fpot the nature and circumftances of the whole tranfaction; which record alone fhall be a fufficient conviction of the offenders. In the interpretation of which statute it has been holden, that all perfons, noblemen and others, except women, clergymen, perfons decrepit, and infants under fifteen, are bound to attend the juftices in fuppreffing a riot, upon pain of fine and imprisonment, and that any battery, wounding, or killing the rioters, that may happen in fupprefling the riot, is juftifiable.

By 33 Geo. III. c. 67. the affembly of feamen, keelmen, cafters, and flip carpenters, to hinder or obftruct the loading or unloading, or the failing or navigating of any ship, keel, or other veffel, or to deter, prevent, hinder, or obftruct any feaman, keelman, cafter, or fhip carpenter, from working at his lawful trade, is prohibited under penalty of imprisonment not exceeding twelve, nor lefs than fix months. The punishment of a fecond offence is tranfportation, for not more than fourteen years, nor lefs than feven. The profecutions are to commence within a year after the fact.

ASSAULTS AND BATTERIES. An affault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by ftriking at him with or without a weapon, or prefenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, ftanding within the reach of it, or by holding up one's fift at him, or by any other fuch like act done in an angry threatening manner: hence it clearly follows, that one charged with an affault and battery may be found guilty of the former, and yet acquitted of the latter, No words whatever can amount to an affault. Any injury, be it never fo fmall, being actually done to the perfon of a man in an angry, revengeful, rude, or infolent manner, as by fpitting in his face, or any way touching him in anger, or violently joftling him out of the way, is a battery in the eye of the law. The general punifhinent for affaults is by fine, but the party aggrieved has alfo an action, by which he may recover a compenfation in damages; and there are exprefs punishments by various ftatutes for different fpecies of affaults, of which fome account has already been given.

AFFRAYS. The word affray is derived from the French word frayer, to terrify, and, in a legal fenfe, is taken for a public offence to the terror of the people. There may be an affault which will not amount to an affray, as where it hap

pens in a private place, out of the hearing or feeing of any, except the parties concerned; no quarrelfome or threatening words whatsoever amount to an affray; and no one can justify laying his hands on those who barely quarrel with angry words, without coming to blows; yet the constable may, at the request of the party threatened, carry the perfon, who threatens to beat him, before a juftice, to find fureties. Affrays may be fuppreffed by any private perfon prefent, who is juftifiable in endeavouring to part the combatants, whatever confequence may enfue; but more efpecially the conftable, or other fimilar officer, however denominated, is bound to keep the peace; and to that purpose, may break open doors to fupprefs an affray, or apprehend the affrayers; and may either carry them before a juftice, or imprifon them by his own authority for a convenient space till the heat is over; and may then perhaps also make them find furetics for the peace. The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the cafe: for, where there is any material aggravation, the punishment proportionally increases. Deliberately engaging in a duel, would be punished as an affray of the moft dangerous defcription; and affrays in a church, or church yard, are ftill more feverely confidered. In' thofe places words, unaccompanied with acts, are fufficient to conftitute an offence; it being enacted by 5 and 6 Edw. VI. c. 4. that if any perfon fhall, by words only, quarrel, chide, or brawl, in a church, or church-yard, the ordinary fhall fufpend him, if a layman, ab ingreffu ecclefie, and, if a clerk in orders, from the miniftration of his office, during pleafüre. And, if any person in such church, or church-yard, proceeds to fmite or lay violent hands upon another, he fhall be excommunicated ipfo facto; or if he ftrikes him with a weapon, or draws any weapon with intent to ftrike, he fhall, befide excommunication, being convicted by a jury, have one of his ears cut off; or having no ears, be branded with the letter F. on his cheek.

RIDING OR GOING ARMED. Riding or going armed with unufual or dangerous weapons is a fpecies of affray without actual violence or verbal threat, fince its direct effect is to terrify the people; it is confidered a crime against the public peace, and is particularly prohibited by the ftatute of Northampton, 2 Edw. III. c. 3. upon pain of forfeiture of the arms, and imprifonment during the king's pleafure. A man cannot excufe the wearing fuch armour in public, by alleging that one threatened him, and that he wears it for the fafety of his perfon from his affault. No wearing of arms is within the meaning of this ftatute, unless accompanied with fuch circumVOL. II. ftances

X X

ftances as are apt to terrify the people; and no perfon is with in the intention of the faid ftatute, who arms hmfelf to supprefs dangerous rioters, rebels, or enemies, and endeavours to fupprefs or refiit fuch difturbers of the peace or quiet of

the realm.

FORCIBLE ENTRY AND DETAINER. By the common law a man difeifed of any lands, or tenements (if he could not prevail by fair means), might lawfully regain poffeffion by force, unless he were put to a neceflity of bringing his action, by having neglected to re-enter in due time. But this indulgence having been found by experience to be very prejudicial to the public peace, by giving an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weaker neighbours, and alfo by force to retain their wrongful poffeflions, it was thought neceffary, by many fevere laws, to reftrain all perfons from the use of such violent methods of doing themfelves juftice; therefore by the 5 Rich. II. ft. 1. c. 8. all forcible entries are punished with imprisonment and ranfom at the king's will; and by the feveral ftatutes of 15 Rich. II. c. 2. 8 Hen. VI. c. 9. 31 Eliz. C. 11. and 21 Jas. I. c. 15. upon any forcible entry, or forcible detainer after peaceable entry, into any lands, or benefices of the church, a justice of the peace, taking fufficient power of the county, may go to the place, and there record the force upon his own view, as in cafe of riots; and upon fuch conviction may commit the offender to jail, till he makes fine and ranfom to the king. And moreover the justices have power to fummon a jury, to try the forcible entry or the detainer complained of; and, if the fame be found by that jury, then, befides the fine on the offender, the justices fhall make reftitution by the fheriff of the poffeffion, without inquiring into the merits of the title; for the force is the only thing to be tricd, punished, and remedied by them; and the fame may be done by indictment at the general feffions. But this provifion does not extend to fuch as endeavour to maintain roleflion by force, where they themselves, or their ancestors, have been in the peaceable enjoyment of the lands and tenc ments for three years immediately preceding.

SURETY FOR THE PEACE AND FOR GOOD BEHAVIOUR. As the laft mentioned offences are chiefly confidered as directed against the peace of the king's fubjects, it may be proper in this place to give an account of the mode reforted to for preventing them, by taking furcties for the peace and for good behaviour. By the Saxon conftitution thefe fureties were always at hand, by means of Alfred's wife mifitution of decenwaries or frank pledges; wherein the whole neighbourhood or

tithing

tithing of freemen were mutually pledges for each other's good behaviour. But this great and general fecurity being now fallen into difufe and neglected, there has fucceeded to it the method of making fufpected perfons find particular and fpecial fecurities for their future conduct: of which we find mention in the laws of Edward the Confeffor; "tradat fidejuffores de pace et legalitate tuenda." This fecurity confifts in being bound, with one or more fureties, in a recognizance or obligation to the king, entered on record, and taken in fome court or by fome judicial officer, whereby the parties acknowledge themselves to be indebted to the crown in the fum required, (for inftance, 100/.) with condition to be void, if the party fhall appear in court on fuch a day, and, in the mean time, fhall keep the peace, either generally, towards the king, and all his liege people; or particularly alfo, with regard to the person who craves the fecurity. Or, if it be for the good behaviour, then on condition that he fhall demean and behave himself well, (or be of good behaviour), either generally or fpecially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a juftice of the peace, must be certified to the next feffion, in pursuance of the ftat. 3 Hen. VII. c. 1.; and if the condition of fuch recognizance be broken, by any breach of the peace in one cafe, or any misbehaviour in the other, the recognizance becomes forfeited or abfolute; and, being eftreated or extracted (taken out from among the other records) and fent up to the exchequer, the party and his fureties, having now become the king's abfolute debtors, are fued for the feveral fums in which they are respectively bound. Any juftice of the peace, by virtue of his commiffion, or thofe who are ex officio confervators of the peace, may demand fuch fecurity according to their own difcretion; or it may be granted at the request of any fubject, upon due caufe fhewn, provided fuch demandant be under the king's protection; or, if the juftice is averfe to act, it may be granted by a mandatory writ, called a fupplicavit, a writ which is feldom ufed; for, when application is made to the fuperior courts, they usually take the recognizances, under the ftat. 21 Jas. I. c. 8. A peer or peerefs cannot be bound over in any other place, than the court of king's-bench or chancery: though a juftice of the peace has power to require fureties of any other perfon, being compos mentis, even if he be a fellow juftice or other magiftrate. Wives may demand it against their husbands, or husbands, if neceffary, against their wives.

A recognizance may be discharged, either by the demise of the king, to whom the recognizance is made, or by the

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death

death of the principal party bound thereby, if not before for feited; or by order of the court, to which it is certified by the juftices, (as the quarter feflions, affizes, or king's bench,) if they fee fufficient caufe: or in cafe he at whose requeft it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may be continued.

Thus far what has been faid is applicable to both fpecies of recognizances, for the peace, and for the good behaviour; but as thefe fecurities are in fome refpects different, efpecially as to the caufe of granting, or the means of forfeiting them, they are now to be confidered feparately.

And firft, with refpect to furetics for the peace. Any juftice of the peace may, ex cfficio, bind to keep the peace, any person who, in his prefence; makes any affray, or threatens to kill, or beat another; or those who contend together with hot and angry words; or go about with unufual weapons or attendance, to the terror of the people; and all fuch as he knows to be common barrators; and fuch as are brought before him by the conftable for a breach of the peace in his prefence: and all fuch perfons, as having been before bound to the peace, have broken it, and forfeited their recognizances. Alfo, whereever any private man has juft caufe to fear that another will burn his houfe, or do him a corporal injury, by killing, imprifoning, or beating him; or that he will procure others fo to do; he may demand furety of the peace againft fuch perfon: and every juftice of the peace is bound to grant it, if he who demands it will make oath, that he is actually under fear of death and bodily harm; and will fhew that he has juft caufe to be fo, by reafon of the other's menaces, attempts, or having lain in wait for him; and will alfo further fwear, that he does not require fuch furety out of malice or for mere vexation. This is called fwearing the peace against another: and, if the party does not find fuch fureties, as the juftice in his difcretion fhall require, he may immediately be committed till he does.

Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an affault, or menace, to the perfon of him who demanded it, if it be a special recognizance or, if the recognizance be general, by any unlawful action whatfoever, that either is, or tends to a breach of the peace; or, more particularly, by any one of the many fpecies of offences which were mentioned as crimes against the public peace, or by any private violence committed against any of his majefty's fubjects. But a bare trefpafs upon the lands or goods of another, which is a ground for a civil action, unless accompanied