tools, and may remove, pull, or cast down such nuisance, and that before any prejudice received thereby; and for that purpose, if need be, may also enter into another man's ground. Thus a man erected a wear across a common river, where people have a common passage with their boats, and divers did assemble with spades, crows of iron, and other things necessary to remove the said wear, and make a trench in his land, that did erect the wear, to turn the water, so as they might the better take up the said wear, and they did remove the same nuisance; this was holden neither any forcible entry, nor yet any riot.

But in the cases aforesaid, if in removing any such nuisance Dalt. c. 137. the persons so assembled shall use any threatening words (as to say, they will do it though they die for it, or such like words), or shall use any other behaviour, in apparent disturbance of the peace, then it seemeth to be a riot, and therefore where there is cause to remove any such nuisance, or to do any like act, it is the safest not to assemble any multitude of people, but only to send one or two persons, or if a greater number, yet no more than are needful, and only with meet tools, to remove, pull, or cast down the same, and that such persons tend their business only, without disturbance of the peace, or threatening speeches. Whether the act intended were of itself lawful or unlawful.] It 1 Haw. c. 65. hath been generally holden that it is no way material, whether $7. the act intended to be done by such an assembly be of itself lawful or unlawful, from 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 lawfully be done in a peaceable manner, they are as properly rioters as if the act intended to be done by them were never so unlawful.

II. How the same may be restrained by a private Person. By the common law, any private person may lawfully endeavour 1 Haw. c. 65. $ 11. to suppress a riot, by staying those whom he shall see engaged therein from executing their purpose, and also by stopping others whom he shall see coming to join them. However it seems extremely hazardous for private persons to proceed to these extremities; and such violent methods seem only proper against such riots as savour of rebellion.

Heath J.

2 Bos. & Pull.

264.

In the riots of 1780, however, this matter was much misunder. Vide per stood, 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 might otherwise have been prevented. So there is a great difference between the right of a private person in cases of intended felony and of breach of the peace: it is lawful for a private person to do any thing to prevent the perpetration of a felony. (a)

(a) The following opinion as to the power of private persons and of the Mili- Opinion of Ld. tary to interfere for the suppression of riots, is said to have been given by the Ellenborough. late Ld. Ellenborough when at the bar: In case of any sudden riot or dis

turbance, any of his majesty's subjects, without the presence of a peace officer of any description, may arm themselves, and of course, may use any rdinery VOL. V.

с

34 Ed. 3. c. 1.

1 Haw. c. 65. § 16.

1 Haw. c. 65. § 17.

III. How by a Constable or other Peace Officer.

By the common law, the sheriff, constable, and other peace officers, may and ought to do all that in them lies, towards the suppressing of a riot, and may command all other persons to assist therein. 1 Haw. c. 65. § 11.

IV. How by one Justice.

By the 34 Ed. 3. c. 1. The justices of the peace shall have power to restrain rioters, and to arrest and chastise them according to their offence and cause them to be imprisoned and duly punished according to the law and custom of the realm, and according to that which to them shall seem best to do, by their discretions and good advisement.

And this statute hath been liberally construed for the advancement of justice; for it hath been resolved, that if a justice find persons riotously assembled, he alone, without staying for his companions, hath not only power to arrest the offenders and bind them to their good behaviour, or imprison them if they do not offer good bail; but that he may also authorise others to arrest them by a bare verbal command, without other warrant; and that by force thereof, the person so commanded may pursue and arrest the offenders in his absence as well as presence. Also it is said that after a riot is over, any one justice may send his warrant to arrest any person who was concerned in it, and also that he may send him to gaol till he shall find sureties for his good behaviour.

But it seems to be agreed that no one justice hath any power by force of this statute either to record a riot upon his own view, or to take an inquisition thereof after it is over. Also if one justice, proceeding upon this statute, shall arrest an innocent person as a rioter, it seemeth that he is liable to an action of trespass, and that the party arrested may justify the rescuing himself, because no single justice is by this statute made a judge of the said offence. But if a riot shall be committed by persons armed in an unusual manner, contrary to the statute of Northampton, 2 Ed. 3. c. 3. and

means of force to suppress such riot and disturbance. This was laid down in my Ld. C. J. Popham's Reports, 121. and Kelyng, 76., as having been resolved by all the Judges, in the 39 of queen Eliz. to be good law: and has certainly been recognised in Hawkins and other writers on the crown law, and by various Judges at different periods since. And what his majesty's subjects may do, they also ought to do, for the suppression of public tumult, when any exigency may require that such means be resorted to. Whatever any other class of his majesty's subjects may allowably do in this particular, the military may unquestionably do also. By the common law, every description of peace officers may and ought to do not only all that in him lies towards the suppression of riots, but may and ought to command all other persons to assist therein. However, it is by all means advisable to procure a justice of the peace to attend, and for the military to act under his immediate orders, when such attendance and the sanction of such orders can be obtained, as it not only prevents any disposition to unnecessary violence on the part of those who act in repelling the tumult, but it induces, also, from the known authority of such magistrates, a more ready submission, on the part of the rioters, to the measures used for that purpose; but still in cases of great and sudden emergency, the military as well as all other individuals, may act without their presence, or without the presence of any other peace officer whatsoever.

EDWARD LAW, Lincoln's Inn, Feb. 9. 1801."

any one justice acting ex officio, in pursuance of the statute, seize the armour, and imprison the offender, and make a record of the whole matter, such a record cannot be traversed, because it is made by one acting in a judicial capacity. And for the same reason, if a justice proceeding on the statute of the 15 R. 2. against forcible entries and detainers shall upon his own view record a riot, which shall be committed in the making of any such forcible entry or detainer, a riot so recorded cannot be traversed. Also if a justice acting as a judge by any statute whatsoever empowering him so to do, make a record upon his view of a riot committed in his presence, such record shall not be traversed; for the law gives such uncontroulable credit to all matters of record made by any judge of record as such, that it will never admit of an averment against the truth thereof.

1 G. 1. st. 2.

But if the rioters are above the number of twelve, the offence is greatly enhanced, and the power of one justice very much enlarged, c. 5. by stat. 1 Geo. st. 2. c. 5. commonly called the Riot Act, and intituled, "An act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters." § 1. after reciting that "Whereas of late many rebellious riots and tumults have been in divers parts of this kingdom, to the disturbance of the public peace, and the endangering of his majesty's person and government, and the same are yet continued and fomented by persons disaffected to his majesty, presuming so to do, for that the punishments provided by the laws now in being are not adequate to such heinous offences; and by such rioters his majesty and his administration have been most maliciously and falsly traduced, with an intent to raise divisions, and to alienate the affections of the people from his majesty: therefore for the preventing and suppressing of such riots and tumults, and for the more speedy and effectual punishing the offenders therein;" enacts, "That Twelve persons if any persons, to the number of twelve or more, being unlawfully, or more unlawriotously, and tumultuously assembled together, to the disturbance fully assembled of the public peace, at any time after the last day of July, in the after the last of year of our Lord 1715, and being required or commanded by any not dispersing one or more justice or justices of the peace, or by the sheriff of after commandthe county, or his under sheriff, or by the mayor, bailiff or bailiffs, ed by one jusor other head officer, or justice of the peace of any city or town tice, &c. by procorporate, where such assembly shall be, by proclamation to be clamation, made in the king's name, in the form hereinafter directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such continuing together to the number of twelve or more, shall be adjudg after such command or request made by proclamation, shall be ed felons withadjudged felony without benefit of clergy, and the offenders out benefit of clergy. therein shall be adjudged felons, and shall suffer death as in case of felony without benefit of clergy."

July 1715, and

2. "That the order and form of the proclamations that shall How the probe made by the authority of this act, shall be as hereafter followeth; clamation shall (that is to say) the justice of the peace, or other person authorised be made. by this act to make the said proclamation, shall, among the said rioters, or as near to them as he can safely come, with a loud voice

1 G. st. 2. c. 5. command, or cause to be commanded silence to be while proclamation is making, and after that, shall openly and with loud voice make or cause to be made proclamation in these words, or like in effect:

tion.

The proclama OUR sovereign lord the king chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of king George, for preventing tumults and riotous assemblies. God save the King.

Justices, &c. to resort to the

place.

Persons so as

sembled and not dispersing, within an hour to be seized.

"And every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head officer aforesaid, within the limits of their respective jurisdictions, are hereby authorised, empowered and required, on notice or knowledge of any such unlawful, riotous, and tumultuous assembly, to resort to the place where such unlawful, riotous, and tumultuous assembly shall be, of persons to the number of twelve or more, and there to make or cause to be made proclamation in manner aforesaid."

§ 3. "And if such persons so unlawfully, riotously, and tumultuously assembled, or twelve or more of them, after proclamation made in manner aforesaid, shall continue together, and not disperse themselves within one hour, that then it shall and may be lawful to and for every justice of the peace, sheriff, or undersheriff of the county, where such assembly shall be, and also to and for every high or petty constable, and other peace officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, and other head officer, high or petty constable, and other peace officer of any city or town corporate where such assembly shall be, and to and for such other person and persons as shall be commanded to be assisting unto any such justice of the peace, sheriff, or under-sheriff, mayor, bailiff, or other head officer aforesaid (who are hereby authorised and empowered to command all his majesty's subjects of age and ability to be assisting to them therein) to seize and apprehend, and they are hereby required to seize and apprehend such persons so unlawfully, riotously, and tumultuously continuing together after proclamation made, as aforesaid, and forthwith to carry the persons so apprehended before one or more of his majesty's justices of the peace of the county or place where such person shall be so apprehended, in order to their being proceeded against for such their offences according to law; and if the persons so unlawfully, riotously, and tumultuously assembled, or any of them, shall happen to be killed, maimed, or hurt, in the dispersing, seizing, or apprehending, or endeavouring to disperse, seize, or apprehend them, by reason of their resisting the persons so dispersing, seizing or apprehendmake resistance, ing, or endeavouring to disperse, seize, or apprehend them, that then every such justice of the peace, sheriff, under-sheriff, mayor, bailiff, head officer, high or petty constable, or other peace officer, and all and singular persons, being aiding or assisting to them, or any of them, shall be free, discharged and indemnified, as well against the king's majesty, his heirs and successors, as against all and every other person and persons, of, for, or concerning the killing, maiming, or hurting of any such person or persons, so

And if they

the persons killing them, &c. to be indemnified.

unlawfully, riotously, and tumultuously assembled, that shall 1 G. st. 2. c. 5. happen to be so killed, maimed or hurt, as aforesaid."

out benefit of

§4. And if any persons unlawfully, riotously, and tumultu- Pulling down, ously assembled together, to the disturbance of the public peace, &c. any church, shall unlawfully, and with force demolish or pull down, or begin &c. felony withto demolish or pull down any church or chapel, or any building clergy. for religious worship, certified and registered according to the statute made in the first year of the reign of the late king William 1 W. & M. and queen Mary, intituled, An act for exempting their majesties' sess. 1. c. 18. protestant subjects dissenting from the church of England, from the penalties of certain laws, or any dwelling-house, barn, stable, or other out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy."

felony without

5. Provides, "that if any person or persons do, or shall, Opposing, &c. with force and arms, wilfully and knowingly oppose, obstruct, or the making such in any manner wilfully and knowingly lett, hinder, or hurt any proclamation, person or persons that shall begin to proclaim, or go to proclaim benefit of clergy. according to the proclamation hereby directed to be made, whereby such proclamation shall not be made, that then every such opposing, obstructing, letting, hindring, or hurting such person or persons, so beginning or going to make such proclamation, as aforesaid, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy; and that also every such person or persons so being unlawfully, riotously, and tumultuously assembled, to the number of twelve, as aforesaid, or more, to whom proclamation should or ought to have been made if the same had not been hindred, as aforesaid, shall likewise, in case they or any of them, to the number of twelve or more, shall continue together, and not disperse themselves within one hour after such lett or hindrance so made, having knowledge of such lett or hindrance so made, shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy."

6. Enacts," that if after the said last day of July, 1715, any such church or chapel, or any such building for religious worship, or any such dwelling house, barn, stable, or other out-house, shall be demolished or pulled down wholly, or in part, by any persons so unlawfully, riotously, and tumultuously assembled, that then, in case such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house, shall be out of any city or town, that is either a county of itself, or is not within any hundred, that then the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly, or in part; and such damages shall and may be recovered by action to be brought in any of his majesty's courts of record at Westminster, (wherein no essoign, protection, or wager of law, or any imparlance shall be allowed) by the person or persons damnified thereby, against any two or more of the inhabitants of such hundred, such action for damages to any church or chapel to be brought in the name of the rector, vicar, or curate of such church or chapel that shall be

And persons so assembled, if the proclamation be

hindered, shall nevertheless

suffer as felons.

How the damages shall be made good, if any church, &c.

be demolished,

&c.