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families), or at his or her making any matrimonial contract without the consent specified in 12 Geo. 3, c. 11.

1

Every person committing such a misdemeanor is put out of the Queen's protection. His lands, tenements, goods, and chattels are forfeited to the Queen, and he is to be imprisoned for life (perhaps, at the Queen's pleasure).

13 Inst. 126; 1 Russ. Cr. 900.

CHAPTER VII

AFFRAYS, UNLAWFUL ASSEMBLIES, ROUTS, RIOTS, TUMULTUOUS PETITIONING AND UNLAWFUL DRILLING

ARTICLE 72.

SENDING CHALLENGES AND PROVOKING TO FIGHT.

EVERY one commits a misdemeanor who

1

(a.) 1 challenges any other person to fight a duel; or,

(b.) 2 endeavours by words, or by writings, to provoke any other person to challenge the offender or to commit a breach. of the peace.

ARTICLE 73.

GOING ARMED SO AS TO CAUSE FEAR.

3 Every one commits a misdemeanor who goes armed in public, without lawful occasion, in such a manner as to alarm the public.

ARTICLE 74.

AFFRAY.

4 An affray is the fighting of two or more persons in a public place to the terror of Her Majesty's subjects. Every affray is a misdemeanor.

1 3 Inst. 158; 1 Russ. Cr. 396; Draft Code, s. 97.

2 R. v. Phillips, 1805, 6 East, 464. It appears from the judgment in this case (pp. 470-5) that the offence defined in clause (b.) is only a special illustration of the general law as to incitement.

3 2 Edw. 3, c. 3, paraphrased with reference to the explanations given in 1 Hawk. P. C. 488-9.

43 Inst. 158; 1 Russ. Cr. 390; Draft Code, s. 96.

ARTICLE 75.

UNLAWFUL ASSEMBLY.

1 An unlawful assembly is an assembly of three or more persons:

:

(a.) with intent to commit a crime by open force; or

(b.) with intent to carry out any common purpose, lawful or unlawful, in such a manner as to give firm and courageous persons in the neighbourhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it.

Every unlawful assembly is a misdemeanor.

Illustrations.

(a.) 2 Sixteen persons meet for the purpose of going out to commit the offence of being by night, unlawfully, upon land, armed in pursuit of game. This is an unlawful assembly.

(b.) 3 A, B, and C meet for the purpose of concerting an indictable fraud. This, though a conspiracy, is not an unlawful assembly.

4

(c.) * A, B, and C having met for a lawful purpose, quarrel and fight. This (though an affray) is not an unlawful assembly.

(d.) 5 A large number of persons hold a meeting to consider a petition to parliament lawful in itself; but they assemble in such numbers, with such a show of force and organization, and when assembled make use of such language as to lead persons of ordinary firmness and courage in the neighbourhood to apprehend a breach of the peace. This is an unlawful assembly.

1 Brook's Abt. "Riot"; Viner's Abt. "Riot "; Lambarde, ch. v. 172-184; Dalton, pp. 310-14; 1 Hawk. P. C. 513-16. See also Report of Criminal Code Commission of 1879, p. 20, and Draft Code, ss. 84, 86. 2 R. v. Brodribb, 1816, 6 C. & P. 571. The meeting in this case was in

a private house.

3 (SUBMITTED.) Compare 1 Hawk. P. C. 515. 4 1 Hawk. P. C. p. 515.

5 Redford v. Birley, 1822, 3 Starkie, N.

P. 106-8; 1 St. Tr. N. S. 1217,

1218; R. v. Vincent, 1839, 9 C. & P. 91. 2 St. Tr. N. S. 1081, 1082.

ARTICLE 76.

ROUTS.

1 A rout is an unlawful assembly which has made a motion towards the execution of the common purpose of the persons assembled.

ARTICLE 77.

RIOTS.

1 A riot is an unlawful assembly which has actually begun to execute the purpose for which it assembled, by a breach of the peace, and to the terror of the public; or

2 a lawful assembly may become a riot if the persons assembled form and proceed to execute an unlawful purpose to the terror of the people, although they had not that purpose when they assembled.

3 Every person convicted of riot is liable to be sentenced to hard labour.

Illustration.

A, B, and C met at A's house for the purpose of beating D, who lives a mile off. They then go together to D and there beat him. At A's house the meeting is an unlawful assembly, on the road it is a rout, and when the attack is made upon D, it is a riot.

ARTICLE 78.

PREVENTING READING PROCLAMATION AND CONTINUING TO RIOT AFTER PROCLAMATION.

♦ Whenever twelve persons or more are unlawfully, riotously and tumultuously assembled together, to the disturbance of the public peace, it is the duty of the justices of the peace,

1 See note to Article 75. Draft Code, ss. 85, 87.

2 Founded on the language of Holt, C. J., in R. v. Soley, 1707, 11 Mod.

116.

33 Geo. 4, c. 114.

4 1 Geo. 1, st. 2, c. 5, ss. 1, 2, 3 (redrawn).

Draft Code, ss. 88, 89.

5 Actual riot is not necessary. R. v. James, 1831, 5 C. & P. 153.

and the sheriff and under-sheriff of the county, or of the mayor, bailiffs, or other head officers, or justices of the peace of a city or town corporate, to resort to the place where. such assembly is, and among the rioters, or as near to them as the person making the proclamation can safely come, with a loud voice command or cause to be commanded silence to be, and then openly and with loud voice make or cause to be made a proclamation 1 in these words or like in effect:

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Our Sovereign Lady the Queen chargeth and commandeth all persons being assembled immediately to dis'perse themselves, and peaceably to depart to their habita"tions, or to their lawful business, upon the pains contained "in the Act made in the first year of King George for "preventing tumultuous and riotous assemblies. God save "the Queen."

All persons commit felony, and are liable to penal servitude for life, who

(a.)3 wilfully and knowingly oppose, obstruct, let, hinder or hurt, any person who begins to make, or goes to make the said proclamation, whereby such proclamation is not made, or

(b.) who remain, or continue together unlawfully, riotously and tumultuously, for one hour, after the proclamation aforesaid was made; or if they know that its making was hindered, for one hour after it would have been made if it had not been hindered as aforesaid.

ARTICLE 79.

RIOTOUS DEMOLITION OF HOUSES, ETC.

5 All persons are guilty of felony, and are liable to penal servitude for life, who, being riotously and tumultuously

1 The omission of "God save the Queen" defeats the effect of the proclamation. R. v. Child, 1830, 4 C. & P. 442.

2 Substituted for death by 7 Will. 4 & 1 Vict. c. 91, s. 1, and the Penal Servitude Acts. See too 5 & 6 Vict. c. 19 (S. L. R.).

3 1 Geo. 1, st. 2, c. 5, s. 5.

4 Ibid., ss. 1 and 5 (redrawn).

524 & 25 Vict. c. 97, s. 11 (redrawn). Draft Code, s. 90.

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