the doctrine relating to that subject is entitled to a place in this work, yet few instances, I believe, have occurred in this state, where the same latitude of power as exercised in England has been attempted.

2. A constable (or other similar officer) is not only empowered, as all private persons are, to part an affray which happens in his presence, but is also bound at his peril to use his best endeavours to effect this purpose; and not only to do his best endeavours himself, but also to demand the assistance of others, which if they refuse to give him, they are punishable with fine and imprisonment. Haw. B. 1. c. 63. s. 13. 4 Bl. Com. 145.

3. If a constable see persons either actually engaged in an affray, as by striking or offering to strike, or drawing their weapons, or the like; or upon the very point of entering upon an affray, as where one shall threaten to kill, wound, or beat another; he may either carry the offender before a justice, to find sureties for the peace, or he may imprison him of his own authority for a reasonable time, till the heat shall be over, and also afterwards detain him till he find such surety by obligation. But he has no power to imprison such an offender in any other manner, or for any other purpose; for he cannot justify the committing an affrayer to jail, till he shall be punished for his offence: and he ought not to lay hands on those, who barely contend with hot words, without any threats of personal hurt, and all that he can do in such case is to command them, under pain of imprisonment, to avoid fighting. Haw. B. 1. c. 63. s. 14.

4. But he is so far intrusted with a power over all actual affrays, that though he himself is a sufferer by them, and therefore liable to be objected against as likely to be partial in his own cause, yet he may suppress them; and therefore, if an assault be made upon him, he may not only defend himself, but also imprison the offender, in the same manner as if he were no way a party. Ibid. s. 15.

5. And if an affray be in a house, the constable may break open the doors to preserve the peace; and if affrayers fly to a house, and he fol low with fresh suit, he may break open the doors to take them. Ibid. s. 16.

6. But a constable hath no power to arrest a man for an affray done out of his own view, without a warrant from a justice, unless a felony were done, or likely to be done. Ibid. s. 17.

IV. HOW FAR BY A JUSTICE OF THE PEACE.

There is no doubt but that a justice of the peace may and must do all such things to that purpose, which a private man or constable are either enabled or required by the law to do. But he cannot without a warrant authorise the arrest of any person for an affray out of his own view; yet in such case he may make his warrant to bring the offender before him, in order to compel him to find sureties for the peace. Haw. B. 1. c. 63. s. 18.

V. PUNISHMENT OF AN AFFRAY.

All affrayers in general are punishable by fine and imprisonment. Haw. B. 1. c. 63. s. 20-1-2-3. 4 Bt. Com. 145.

VI. WARRANTS, INDICTMENTS, &c. AGAINST

AFFRAYERS.

1. Upon complaint made to a justice of the peace, he may issue his warrant to apprehend the offender; but if it be upon the application of any particular person, he should first administer to him the following oath :

The information which you shall give against A. O. of the county of labourer, shall be the truth, the whole truth, and nothing but the truth. So help you God.

(A) Warrant to apprehend affrayers.

To all constables and other officers in the county of

county, to wit:

Whereas A. I. of the said county, hath this day made oath before me P. S. one of the commonwealth's justices of the peace for the county aforesaid, that on the

day of

in the year of aforesaid, labourer, in the said county,

our Lord A. O. of the county of and B. O. of the said county, labourer, at in a tumultuous manner made an affray, wherein the person of the said A. I. was beaten and abused by them, the said A. O. and B. O. without any lawful or sufficient provocation given to them or either of them by him, the said A. I. These are therefore to command you forthwith to apprehend the said A. O. and B. O. and bring them before me, or some other justice of the peace for the said county, to answer the premises, and to find sureties, as well for their personal appearance at the next court to be held for the said county, as for their keeping the peace in the mean time towards all our good people, and especially towards the said A. I. Herein fail not, at your peril. Given under my hand and seal, this day of one thousand, &c.

When the offender is apprehended by this warrant, and brought before the justice, he may admit him to bail, or refuse it, on due consideration of the nature and circumstances of the case; and on this subject, the acts of assembly concerning bail will best regulate his conduct. Sce title "BAIL."

The sum in which the offender and his securities should be bound is left to the discretion of the magistrate; but it should be recollected that excessive bail should in no instance be required, from the express letter of the Declaration of Rights, art. 9.

(B) Recognizance of bail.

Memorandum, on this

Lord

day of

wealth's justices of the peace, for the county of

in the year of our

personally came before me P. S. one of the commonA. O. of the county aforesaid, labourer, and B. R. and C. R. both of the same county, carpenters, and acknowledge that they owe to

esquire, governor

or chief magistrate of the commonwealth of Virginia, namely, the

said A. O. fifty dollars, and the said B. R. and C. R. each respectively twenty-five dollars, current money; to be levied of their respective goods and chattels, lands and tenements, to the use of the said commonwealth if default is made in performance of the con

dition here under written.

to

The condition of this recognizance is such, that if the above bound *A. O. shall personally appear before the commonwealth's justices of the peace, at the next court to be held for the county of answer to such matters as shall then and there be objected against him by A. I. of the said county, gentleman, concerning the assaulting, beating, and wounding the said A. I. by him, the said A. O. and concerning other misdemeanors tending to a breach of the peace, and if he do not depart without leave of the court, then this recognizance to be void, or else to remain in full force and virtue.

esquire,

The condition of the recognizance being read to the parties, the justice should take their acknowledgment in the following manner : You A. O. acknowledge yourself to be bound to governor, &c. in the sum of fifty dollars, and you B. R. and you C. R. in twenty-five dollars each, to be levied of your respective goods and chattels, &c.

The justice must certify this recognizance to the next court, in order that further proceedings may be had thereupon; and if it appears to the court, upon hearing the evidence, that there is just cause of prosecution, they will direct the attorney for the commonwealth to prefer an indictment against the offender, and may commit or bail him, or bind him to his good behaviour, for any time, in such security and sum, or discharge him, as they shall judge most proper to be done.

If the offender fails to comply with his recognizance to appear before the court, the clerk must record his default, to entitle the commonwealth to its forfeiture; or if, when brought before the justice, he refuses to enter into a recognizance, or give security, he must be forthwith committed by such justice.

(C) Mittimus.

County, to wit:

To the keeper of the jail of the said county.

These are, in the name of the commonwealth, to command you to receive into your jail the body of A. O. late of the county aforesaid, labourer, taken by my warrant, and brought before me, being charged upon oath, by A. I. of the said county, gentleman, with assaulting, beating, and wounding the said A. I. in an affray, by the said A. O. and others, lately made; and that you safely keep him in your said

Since the act of congress altering the denomination of our money, from pounds, shillings, pence and farthings, to dollars, dismes, cents and mills, and the act of assembly of 1792 (1 Rev. Code 209) adopting the same, it seems more proper to express all sums, officially mentioned by justices of the peace, in dollars.

jail and custody, until he be thence discharged by due course of law. Given under my hand and seal, this

year of our Lord

day of

in the

Where the commitment is for an affray, or for threatening and striking in the presence of the justice, the mittimus may be as follows: (D) Mittimus.

County, to wit:

and

of &c. and

To the keeper of the jail of the said county. I send you herewith the bodies of of &c. whom I requirey ou, in the name of the commonwealth, to recieve into your custody, being convicted, by my own view, of an affray by them made in my presence; and you are hereby commanded to keep them, and each of them, the said safely in your jail, until they, or either of them, respectively, shall procure two sufficient persons to be bound with them, or either of them, separately, to the governor or chief magistrate of the commonwealth of Virginia; that is to say, each of the securities in the sum of dollars, and the dollars, to appear at the to answer the pre

and

each, in

said next court to be held for the said county of mises, and in the mean time to be of good behaviour, or until they, or either of them, shall be otherwise discharged by due course of law. Given under my hand and seal, &c.

If a constable takes the offender on his own authority, and carries him before a justice, to whom he refuses to give security, the mittimus may be drawn in the same form, except that the cause of commitment should be varied, and very clearly set forth.

(E) Indictment for an affray generally.

County, to wit:

The jurors for the body of the county aforesaid upon their oath do present, That A. O. of the county of aforesaid, taylor, and B. O. of the said county, blacksmith, with force and arms, on the day of in the year of our Lord at the county aforesaid, being arrayed and unlawfully assembled together in a warlike manner, did make an affray, to the terror and disturbance of divers of the citizens of this commonwealth, then and there being, and to the evil example of all other the citizens of the said commonwealth, and against the peace and dignity of the commonwealth.

(F) Indictment for an affray and beating another.

County, to wit:

The jurors, &c. upon their oath present, that A. O. late of the pa rish of in the county of

late of the parish of

and arms, on the

at the county of

aforesaid, clerk, and B. O. in the same county, merchant, with force day of in the year of our Lord aforesaid, of their malice aforethought, made

an assault and affray in and upon one R. S. of the said county, yeoman,

then and there being, in the peace of God, and of the commonwealth aforesaid, and struck upon the head the said R. S. with certain swords, which the said A. O. and B. O). then and there severally held in their right hands, and then and there gave to the said R. S. divers wounds, which put him in great danger of his life, so that his life was greatly dispaired of, to the bad example of other citizens of the said commonwealth, and against the peace and dignity of the commonwealth.

The foregoing precedents, under this title, are adapted to affrays considered as offences at the common law. It yet remains to discuss the duty of a justice of the peace, in suppressing an affray prohibited by the act of assembly (1 Rev. Code 30.) This statute seems to con⚫ template two distinct offences; the one, where the affray is made in presence of a court of justice, or its ministers of justice, doing their office; the other, where the affray arises from going armed, "in fairs or markets, or in other places, in terror of the country." In the first instance, the punishment is a forfeiture of the armour, and imprisonment of the offender at the pleasure of a court; in the second, a forfeiture of the armour also, and imprisonment for so long time, not exceeding one month, as a jury, to be sworn for that purpose by the justice committing the offender, either upon his own view, or proof by cthers, shall direct.

(G) Warrant to summon a jury under the above recited

To

County, to wit:

act.

constable in the said county.

Whereas it hath been fully proven to me, by the oath of A. J. and B. J. of the said county, that A. O. of the county aforesaid, labourer, and B. O. of the said county, labourer, on the in the year of our Lord

day of with force and arms, viz. with swords, in the county afore

guns, and other warlike instruments, at said, being arrayed and unlawfully assembled together in a warlike manner, did make an affray, by riding armed as aforesaid in the said county, in terror of the country. These are therefore to require you, in the name of the commonwealth, immediately upon sight hereof, to summon twelve good and lawful men of the vicinage of the said in the said county, to be and appear before me J. P. one of the commonwealth's justices for the said county, at aforesaid, in the said county, on the then and there to inquire of, do and execute all such things, as on the commonwealth's behalf shall be lawfully given them in charge, touching the affray aforesaid. And be you then there to certify what you shall have done in the premises, and further to do and execute what in behalf of the said commonwealth shall be then and there enjoined you. Given under my hand and seal, this day of in the year of our

Lord

day of

As it is probable there will seldom be occasion to enforce this act, I shall add no other precedents founded on it; but only observe, that the form of the oath to be administered to the jurors and witnesscs will naturally arise out of the subject.