to the rioters, with an audible voice, command or caufe to be commanded filence, whilst proclamation is making, and after that fhall openly with audible voice, make or caufe to be made prock mation in these words, or words to the like effect. In the name and by the authority of the State of Connecticut, I charge and command all perfons affembled, immediately to difperfe themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains and penalties contained in the act or law of this state, entitled an act for preventing and punishing riots, and riot

ers.

If the rioters do not then difperfe, fuch authority may command all perfons to aflift, and they may feize and apprehend them, and carry them before fome affiftant or juftice of the peace, to be dealt with according to law. If any of the rioters are killed, maimed, or hurt in the attempt, the authority and thofe acting under them are fully difcharged from any private damages or public punishment. If any perfon fhall with forse and arms, wilfully and knowingly oppofe, obftruct, hinder or hurt any perfon, going to make proclamation as aforefaid, he fhall be punifhed as a rioter, and if the rioters do not difperfe, having knowledge that fuch proclamation has been hindred to be made, they fhall be deemed guilty of a riot and punished accordingly. The profecution must be within a year after the commiffion of the crime.

Here it may be remarked, that if three or more perfons affemble to do an unlawful act, and none is done, and no proclamation is made, they are not punishable: if proclamation be made and they difperfe without doing any unlawful act, they are not punishable; if on proclamation they do not difperfe, they are punishable: if no proclamation be made and they do an unlawful act, they are punVithable. m At common law, there is a gradation of thefe crimes. An unlawful affembly, is where three or more perfons meet with an intent to do an unlawful act, and do nothing. A rout is where they make fome advances, but do not compleat the act and a riot is the completion of the unlawful act. Our statute comprehends all offences of this fort under the general name of riot.

m4 Black. Com. 146.

III. Breaches

III. Breaches of the Peace, are by ftatute defined to be tumultuous and offenfive carriages, threatening, traducing, quarrelling, challenging, aflaulting, beating, or ftriking any perfon. This comprehends affaults, batteries, wounding, and falfe-imprisonment: which we have already confidered as private injuries, and which are punishable as crimes. The expreffion of tumultuous and offenfive carriage, threatening, traducing and quarrelling are fo general, that upon a literal conftruction, they might comprehend a vast variety of actions : but they are limited by the fubfequent words, which provide that the offender fhall pay to the party hurt, or ftricken, juft damages, and also a fine; which imports that there must be perfonal violence, and that the mere offending a perfon, threatening to abufe him, or challenging to fight, unaccompanied by force and violence, will not be a breach of the peace; but that a perfon must do an act, by which another is hurt or ftricken, to make him guilty of a breach of the peace. The general rule therefore, in the conftruction of this ftatute feems to have been this, that where a perfon does an act which amounts to an affault and battery at common law, he is guilty of a breach of this ftatute. And this feems to be a rational conftruction, for public juftice does not require that the quarrelling, fcolding and abufive converfation unaccompanied by violence, among neighbours, fhall come under the animadverfion of the law. Of affault and battery we have fully treated in confidering private injuries. A fighting of two perfons Under this flatute may be

by confent, is a breach of the peace. comprehended the common law offence, of affray, which fignifies the fighting of two or more perfons, in fome public place to the terror of the people.

The punishment for thefe offences, is a difcretionary fine, according to the merits of the offence; confidering the party fmiting, or fmitten; the inftrument, danger, time, place, and provocation. If an indian, negro, or mulatto fervant, or flave, fhall be guilty of this crime, he fhall be punished by whipping, at the difcretion of the court, not exceeding thirty ftipes.

By ftatute, fheriff's and conflables have the power, and it is their duty

n Statutes, 188.

duty to prevent and fupprefs breaches of the peace, and may apprehend the offenders, and carry them before proper authority. By common law a private perfon is justified in endeavouring to feparate the combatants, let what will be the confequence, to hold them to prevent them from fighting, to stay them till the heat be over, to confine them till they tan deliver them to a conftable, or bring them before a juftice of the peace. If in doing this he unavoidably hurt the perfon, he is excufable: but if the perfon hurt him he may have his action. By common law sheriffs, and conftables may break open houses to fupprefs breaches of the peace, and if any perfon be dangerously wounded, they as well as private perfons may hold the offender and carry him before proper authority.

The law has provided certain meafures, which are calculated to preferve the peace. It is enacted by ftatute, that furety of the peace, or good behaviour, fhall be granted, as the merit of the cafe fhall require, by any affiftant or juftice of the peace, against all perfons who by threatening words, turbulent behaviour, or actual violence, or by any other unlawful action, fhall terrify, or dif quiet any of the good people of this state; and also against common barrators, who frequently flir up, and maintain suits at law, in courts or quarrels, and parties in the country: as also against fuch as invent and spread falfe reports, whereby discord arises, or may arife among neighbours: as alfo against fuch as are of evil name, or fame generally, for maintaining, or reforting to hoofes of bawdry, and incontinency: alfo against night-walkers, that are of evil name or report generally, or fuch as eve-drop men's houses, or caft carts into ponds, or commit other fuch like misdemeanors, outrages, or diforders in the night feafon : alfo against idle perfons, drunkards, libellers, and against fuch like offenders. If any perfon have just reafon to fear, that another will do him a corporal injury, by killing, beating, or imprifoning him, or that he will procure others to do it, he may make complaint to an affistant or Aftice of the peace, and upon making oath that he is in fear of death, or bodily harm, and will shew that he has just cause to be Hawk. P. C. 128.

• Statutes, 189.

fo

o, by reafon of the other's threats, menaces, attempts, or having lain in wait for him, and that he does not require fuch furety of malice or mere vexation, then fuch affiftant or juftice may require the party complained of, to find fureties of the peace.

In all inftances where the public peace only is affected, the mast fual mode of proceeding is by information, and complaint from fome informing officer. 7 At common law any juftice of the peace, may officially bind all those to keep the peace, who in his prefence make any affray, or threaten to kill, or beat another, or contend together with hot, and angry words, or go about with anufual weapons, or attendants, to the terror of the people-all fuch as he knows to be common barrators, and fuch as are brought before him by a constable, for a breach of peace in his prefence. From the expreffions of the statute, it would feem a rational construction that an affiftant or juftice of the peace, fhould have the power to compel a perfon to find furetics of the peace, or good behaviour, in all the cafes mentioned in the ftatute, which happen in their prefence, or of which they have perfonal knowledge: but that in other cafes the information fhould be by a proper officer. Where a private perfon is in danger, he may profecute in his own name.

Upon proper complaint, or perfonal knowledge, as the cafe may be, an affiftant, or juftice of the peace may iffùe a warrant to fome officer, to apprehend the perfon complained of, and from his own knowledge, or due proof of the facts charged, he may order fich perfon to become bound with good and fufficient furety, or fureties, in a recognizance of a proper fum, conditioned that he fhall carry good, and peaceable behaviour, towards all the subjects of the state, and if the process be on information of fome private perfon, efpecially towards him, and if on the information of fome public officer, to abstain from doing the particular acts complained of, and appear at the next court of common pleas, and take up his bond, unless the court fhall order a continuance of it; which proceedings muft be certified to faid court. If the condition of the recognizance be broken by a breach of the peace, or doing that particular act, Hawk. P. C. 126. 4 Black.254.

Ibid. 255.

which

which the perfon was bound to avoid, or by an actual violence, or even menace, or affault upon the private perfon, who demanded it, then the recognizance is forfeit, and becomes abfolute, and an action ean be brought for the recovery of the penalty. The court to whom the recognizance is returned, may order a continuance of it, if they think proper, for the purpose of retraining the offender, but if he appears and moves to be discharged, and no proof is had of a forfeiture, or no fufficient objection fhewn, he may be difcharged. If the recognizance be taken to a private perfon, he may dif charge it. If the party recognized does not appear in perfon it will be a forfeiture of the bond.

If the perfon complained of, or brought before an affiftant or juftice of the peace, and being ordered to find fureties of the peace, or good behaviour, fhall refufe, the court may commit him to the common goal, there to remain until delivered by due order of law.

IV. The refufal to affift a sheriff in the execution of his office and duty, if the perfon be of age and capacity, and commanded, subjecs him on conviction, to a fine not exceeding ten pounds. The refufal to affilt a conftable is punishable by a fine of ten fhillings, but if it appear to be done wilfully, contemptuoufly or obftinately, the fine may be forty fhillings.

When in cafe of great oppofition, the fheriff raises the militia of the county, any commiffioned officer refufing to obey, is punishable by a fine not exceeding twenty pounds, and every foldier by a fine not exceeding three pounds, and all charges and damages occafioned thereby.

V. Obstruction of lawful procefs at common law, is deemed highly criminal, and renders the party a partaker of the crime of him who was about to be arrested. Our ftatute law has provided, if any perfon fhall abufe any magiftrate, or juftice of the peace, or refift and abufe any fheriff, conftable or other officer in the execu tion of his office, he fhall find fureties for the peace, and good behavior, until the next county court in the county, and on refumay be committed to the common goal, there to remain tiil the next court; who may take cognizance of the wrongs and abu#Ibid- 224. # Ibid. 189.

fal

f Statutes 224.

fes