And

the street or any place frequented by the public.1 even if a person go about in a threatening manner with any formidable weapon, he may be guilty of an affray, and so be bound to his good behaviour; 2 and the same if, after assaulting or being assaulted, he threatens in a public place to renew such assault.3 The statute of 2 Edward III., c. 3, called the Statute of Northampton, with a view to prevent this ready resort to physical force, enacted, that no person, except the king's servants in his presence or his officers of justice, should go about, or ride, armed, otherwise such arms were to be forfeited, and the wearer was liable to imprisonment, and the justices, sheriffs, and lords of franchises were made punishable for not seizing such person.* And statutes of Richard II. again forbade others than those excepted to ride armed." The first statute was, however, interpreted only to prohibit the wearing of arms and weapons in such a manner as to cause terror, as by going to church at the time of divine service with a gun; but not when this was done merely for the wearer's own protection. And for a like reason, if a man for purposes of self-defence assemble his friends in his own house so as to protect himself, this is no affray, and such step is quite competent to all men."

An affray does not consist in mere angry and hot words, for so long as no individual is actually threatened, none need be affrighted. And if any one is personally afraid, the remedy is to apply for articles of the peace; or the constable, and he alone, may arrest the threatener, in order that the latter may be taken before a justice and bound over to keep the peace. An affray differs on the one 11 Russ. Cr. 406 (4 ed.). 2 R. v Knight, 3 Mod. 117. Seeley, 10 Cl. & F. 28.

3 Price v

4 1 Hawk. c. 63, §5; Case of Armes, Poph. 121; Cro. Eliz. 294. There was also a law in Athens against going into an assembly armed.-Smith's Dict. Diocles. And the Spartans made a law against going into an assembly with staves, because one once put out Lycurgus's eye.-Plut. Lycurg. In the time of Henry VIII. it appeared a Welshman was prohibited from entering a court of justice carrying arms.-26 Hen. VIII. c. 6. But this was only a repetition of the law of Plautus Sylvanus.-5 Univ. Hist. 51.

37. Rich II.; 17 Rich. II. c. 1, repealed by 19 & 20 Vic. c. 64. 61 Hawk. 63, §8; 3 Mod. 117; 2 Bulst. 330. 7 24 Edw. III. c. 33; 21 Hen. VII. c. 39; 3 Inst. 161. 8 1 Hawk. c. 63; Dalt. c. 8; Howell v Jackson, 6 C. & P. 723.

hand from an assault, and on the other hand from a riot. An assault may take place anywhere; an affray must be in a public place. A riot must be joined in by at least three persons, while one person may be guilty of an affray.1 A prize fight may be fought in so private a manner as to give rise to no offence other than assault.2 Or it may begin as an assault, and soon turn into an affray by constables arriving and suffering resistance.3 An instance of an affray is where a fight is carried on in a public place, in which case all present and encouraging are guilty of the offence of affray. And where parties have promoted the fight, they may be guilty of a riot as well as an affray.5 For the same reason a duel, if carried out in a place of public resort, is an affray in addition to its becoming a crime of murder or manslaughter according to the circumstances and the result. Even a forcible entry into one's own land, or to recover one's own goods, may be an affray, if force be used, and if numbers of persons join.

6

Who may stop an affray.-The rule as to an affray is, that any person whatever, who witnessed it, is justified in using force to seize and deliver to a constable one of the affrayers, and if the affrayer is hurt or wounded in the attempt, the person so seizing or wounding him, if the force used was no more than was reasonably adapted to secure the object in view, will nevertheless be justified in his act. Not only is a bystander justified in interfering to arrest an affrayer, but if he be reasonably able to interfere with effect, and refuse to assist a constable when asked, he will be liable to indictment, and to be fined and imprisoned; for though this offence is seldom prosecuted, all are liable to such an occasional duty.8 A bystander seizing an affrayer is not bound to keep him in his personal

3

R. v

5 R. v

1 1 Hawk. P. C. c. 28 § 2. 2 R. v Hunt, 1 Cox, C. C. 177. Bellingham, 2 C. & P. 234. 4 R. v Perkins, 4 C. & P. 537. Bellingham, 2 C. & P. 234. 6 Anon. 3 Stark. 187. 7 1 Hawk. c. 63, §§ 11, 12; 3 Inst. 158; Timothy v Simpson, 1 C. M. & R. 757. R. v Wilburn, Noy, Rep. 50; R. v Brown, Car. & M. 314; R. v Pinney, 5 C. & P. 261.

The Egyptians made it a capital crime not to assist a man when assaulted or murdered, or failing that, to discover and prosecute the offender; the punishment in this last case was whipping and starvaion for three days.-Herod.: Diod. Sic.

custody, but is justified in detaining him a reasonable time until a constable can be found to take charge of him. And for the same reason, if he has been attacked by the affrayer, he may seize and detain the latter a reasonable time.

A constable is bound to arrest all persons whom he sees committing or about to commit an affray, taking care, however, not to interfere so long as the contention is one merely of angry words.2 He is also bound to receive into custody any affrayers on the report of one who saw the affray committed, though in that case he must exercise his own judgment as to the credibility of the informant.3 And he may likewise pursue an affrayer and break into a house in order to effect an arrest, though he ought first to demand admission peaceably. And while he cannot be lawfully obstructed, yet if one peaceably resist him while arresting the affrayer, he may arrest the person so obstructing, though he will not be justified in giving such person a blow. While a constable may arrest an affrayer who is actually committing or about to commit the offence, yet if the affray is over, he then can no longer, though a witness to the offence, arrest the affrayer. He must in that event get a warrant from a justice of the peace unless indeed he has reason to believe that the affray will be renewed, or unless he is in fresh pursuit of the affrayer."

A justice of the peace, whose primary business is to see the peace preserved, may, like ordinary persons, actively interfere by seizing an affrayer if the affray is committed within his view; but if the offence is committed out of his view, he can only grant a warrant in the usual way to bring the affrayer before him or to bind the affrayer to keep the peace.7

Punishment for an affray.-The judgment in case of this offence is fine and imprisonment, besides being called upon to find surety to keep the peace. Formerly part of

1 1 Hawk. c. 63, §§ 14, 15.

2 Howell v Jackson, 6 C. & P. 723. 3 Derecourt Corbishley, 24, L. J., Q. B. 313; Cook v Nethercote, 6 C. & P. 741; 2 L. Raym. 1296; Griffin v Coleman, 4 H. & N. 265. 4 Ibid. 1 Hawk. c. 63. 5 Levy v Edwards, 1 C. & P. 40. 6 Cook v Nethercote, 6 C. & P. 741; R. v Walker, Dearsl. 358; R. v Light, D. & B. 332. 7 Hawk. P. C. §§ 18, 19; Still v Walls, 7 East, 536; R. Bellingham, 2 C. & P. 234.

the punishment, when the offence was committed in the royal palace, was the loss of the right hand.1 And it was once the law that affrays, or even hot words, which passed in a church or churchyard, were more severely punishable than if they passed elsewhere, for the party offending was liable to have one of his ears cut off, and to be excommunicated.2 Nor was it deemed an excuse that another assaulted him first.3 This distinction is now, however, abolished in all except the name.1

1 1 Hawk. c. 21, § 1. 2 5 & 6 Ed. VI. c. 4, § 26 (now repealed). 3 Cro. Ch. 467; Noy, 171. 423 & 24 Vic. c. 32, § 2; 24 & 25 Vic. c. 100, § 42. The offence of disturbing divine worship in church or chapel, belongs to the head of "Security of public worship." See also Chap. III. post.

CHAPTER II.

ACTUAL INJURY TO THE BODY BY THE NEGLIGENCE OF OTHERS.

Injury to the body by negligence of others.-While the law accords protection to the body against all attacks caused by wilfulness or malice-from the most deadly to the most trifling, from murder to the pettiest assault,this is not sufficient; for there is still a class of injuries which are caused wholly without malice, and wholly without any intention to do injury, and yet the suffering and loss may be the same, while the cause is different. Where the body is directly injured by the act or default of another, so that pain, suffering, or death ensues, this requires also a remedy. And the law has given such a remedy to the sufferer, or, if the injury is fatal, then to his representatives, against the person who is the author of the negligence.

The foundation of this class of injuries and remedies is undoubtedly this, that while each person has the same right as another to pursue his lawful occupations, each is bound, on that very account, to bear always in his mind, that there are others in the world besides himself, who are just as intent on business, or pleasure, or gain, as he is. Unless, therefore, he observes some degree of care, and takes some pains not to come into collision with his neighbour, there will be indefinite mischief and injury, not to speak of irritation and hot blood. It is matter of common experience, that there is a right way and a wrong way of doing most things-a careful, and prudent, and considerate way, and a reckless, imprudent, and unscrupulous way; and that, while recklessness exists, on one side or on both sides, there cannot fail to be injuries and collisions, more or less serious to one or other.