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the space of days, viz. from, &c. to, &c. to show, exhibit, present, and perform, within the said theatre, such certain plays and entertainments of the stage, as had then theretofore been represented at the licensed theatres in the city of Westminster, &c. and to hire and keep such and so many players and persons to act tragedies, comedies, and plays, within the said theatre, as they should think convenient and necessary, and such persons to permit and continue at and during the pleasure of the said proprietors and managers from time to time to act tragedies, comedies, and plays within the same, peaceably and quietly, without impeachment or impediment of any person or persons whatsoever, to wit, at, &c. And the jurors, &c. that on the said, &c. P. Q. gentleman, was a person who used and followed the profession of a player, and then was, and long before that time had been, engaged and retained as a player in the way of his said profession, by the said A. B. on behalf of himself and C. D. aforesaid, being such proprietors and managers as aforesaid, for and during a certain time not then expired, at and for a certain remuneration or reward, therefore payable by them the said proprietors and managers to the said P. Q. when and so often as he should act and perform any part in any of the said tragedies, comedies, or plays as aforesaid, at M. aforesaid, and that the said P. Q. then, and for divers, to wit, ten years, then last past, sought his living, and sustained himself and his

ward, act, represent, or perform, or cause to be acted, &c. any interlude, tragedy, comedy, opera, play, farce, or other entertainment of the stage, or any part therein, not being authorized by law."

But, by 28 G. III. c. 30, "It shall be lawful for the justices at the general or quarter sessions, at their discretion, to grant a license to any person making application for the same by petition for the performance of any such plays or entertainments of the stage, as are or shall be represented at the licensed theatres in Westminster, or have been submitted to the inspection of the lord chamberlain, as aforesaid, at any place within their jurisdiction, or within any city, town, or place, situate within the limits of the same, for any time not exceeding sixty days, to commence within the then next six months, and to be within such four months as shall be specified in the said license, so as there be only one license in use at the said time, within the jurisdiction so given, and so as such place be not within twenty miles of London or Westminster, or eight miles of any patent or licensed theatre; or ten miles of the residence of the king, or of any place within the same jurisdiction, at which, within six months preceding, a license under this act shall have been had and exercised; or within fourteen miles of either of the universities; or within two miles of the outward limits of any city, town, or place, having pecu

liar jurisdiction; and so also, as no license under this act shall have been had and exercised at the same place within eight months then next preceding," s. 1.

But no such license shall be granted to be exercised within any city, town, or place, having peculiar jurisdiction, unless proof be made that the majority of the justices acting for such place have at a public meeting signed their consent, unless an express condition be therein inserted, that the same shall not be valid until approved by the majority of the justices of such place at a meeting holden expressly for that purpose, s. 2.

Nor shall such license be granted by the justices within any city, town, or place, unless notice shall have been given by the person applying for such license, three weeks before such applica tion to the mayor, bailiff, or other chief civil officer of such place, of such intended application, s. 3.

This act confers power on justices to make that lawful, which, by 10 G. II. c. 28, was unlawful, viz. theatrical performances not sanctioned by royal patents or licenses, or taking place in places out of the limits of such patents, or in towns, &c. not included in local acts passed to legalize such entertainments in certain limits. See per Lord Tenterden, in R. v. Neville, 1 B. & Adol. 495; and Levy v. Yates, 8 Ad. & E. 129. See post, Ch. XV. s. 10.

family by his said profession and occupation of a player, and thereby gained and acquired a comfortable subsistence for himself and his family. And the jurors aforesaid further, &c. that on the said, &c. a certain old play called Venice Preserved, which said play of Venice Preserved had then been represented for many, to wit, fifty and more years, at the licensed theatres in the city of Westminster aforesaid, was appointed by the said A. B. and C. D. proprietors and managers aforesaid, to be presented that day at and in the said theatre in M. aforesaid, and that the said P. Q. as such player as aforesaid, was appointed by the said A. B. and C. D. to play and perform a certain part in the said play called and distinguished by the name of Jaffier. And the jurors, &c. that E. F. late of, &c. G. H. late of, &c. and K. L. late of, &c. [the defendants], with divers other evil disposed persons to the jurors aforesaid as yet unknown, with force and arms, on the said, &c. at, &c. aforesaid, did unlawfully, riotously, and routously assemble and gather together in the said theatre, to disturb the peace of our said lady the Queen, and being so assembled and gathered together in the said theatre, then and there unlawfully, wickedly, routously, at and in the last said last-mentioned theatre or play-house, made and raised a loud hissing, and caused and procured to be made a great noise, rout, tumult, and disturbance, and thereby then and there unlawfully, routously, tumultuously, and turbulently prevented and hindered the said P. Q. from playing and performing the said part of Jaffier, in the said play called Venice Preserved (y), and then and there wholly obstructed and prevented the performance of the said play, there in the said last-mentioned theatre, without the consent and against the will of the said A. B. and C. D. then proprietors thereof; and then and there also, unlawfully, riotously, routously, tumultuously, and maliciously assayed and endeavoured to force, compel, and oblige the said A. B. and C. D. such proprietors and managers as aforesaid, against the wills of the said A. B. and C. D. to discharge the said P. Q. without his consent, and against his will, from his said retainer and employment of a player, at the said last-mentioned theatre, and wholly to dismiss him therefrom; by means whereof the said P. Q. hath ever since that time hitherto remained wholly unemployed in his aforesaid retainer and employment, and hath wholly lost and been deprived of great gains, which would otherwise have accrued to him therefrom, to wit, at, &c. aforesaid; to the great terror and disturbance of her majesty's subjects assembled lawfully in the said theatre, and against the peace, &c.

Punishment of Riot.]-Hard labour may be ordered on conviction, 3 G. IV. c. 114; and costs of prosecution are allowed, 7 G. IV. c. 64, s. 23.

(y) It has been laid down, that although the audience at a theatre have a right to express their disapprobation of any performance or actor, exciting their displeasure at the moment, yet if a number of persons go thither with an intention to make a disturbance and render

the performance inaudible, though they offer no actual violence to the house, or any person there, they will be guilty of a riot, or, according to the foregoing definitions, a rout, Clifford v. Brandon, 2 Camph. 358.

SECTION XXV.

SOLICITATIONS TO COMMIT OFFENCES.

EVERY Solicitation of another to commit an indictable offence, whether felony or misdemeanour, is itself an act amounting to a misdemeanour at common law (ante, Ch. VI. sect. 1). Thus, to solicit a servant to steal the goods of his master is a misdemeanour, although no felonious act be done in pursuance of the incitement, or any farther step beyond the soliciting be taken towards the commission of the felony (z). Again, to solicit a member of the privy council to accept a bribe for the disposal of an office (a); to promise money to a member of a corporation if he will vote for a particular individual as mayor (b); or to offer a bribe to a juryman (c), are themselves misdemeanours; and the same principle applies to all cases where an ineffectual attempt is made to induce another to commit an offence. On a prosecution for a misdemeanour in inciting another to commit felony, it is not necessary for the prosecutor to show negatively that the felony was not completed; but he may leave it to the defendant to show, if he think fit, that the misdemeanour was merged in the greater offence; or, in the absence of such proof, he may be convicted of the solicitation (d).

Indictment for soliciting a Servant to Embezzle his Master's Goods. That A. B. late of, &c. on the, &c. at, &c. did wickedly and unlawfully solicit and incite one A. D. a menial servant of one D. W. of aforesaid, gentleman, feloniously to take, steal, and carry away a certain number, to wit, seven, of linen napkins, of the value of fourteen shillings, of the goods and chattels of his master the said D. W. and to deliver to him the said C. F. the said seven linen napkins; against the peace, &c.

Indictment for soliciting a Person to commit an Unnatural Crime.

That A. B. late of, &c. being a person of a most wicked and abandoned mind and disposition, and devising and intending to vitiate and corrupt the morals of one C. D. and to stir up and excite in his mind filthy, lewd, and unchaste desires and inclinations, on, &c. at, &c. did wickedly and unlawfully solicit, invite, and endeavour to persuade the said C. D. to permit and suffer him the said A. B. then and there feloniously and wickedly to commit and do that detestable and abominable crime called buggery with the said C. D.; against the order of nature, against the

peace, &c.

(2) R. v. Higgins, 2 East, R. 5. (a) R. v. Vaughan, 4 Burr. R. 2494. (b) R. v. Plympton, 2 Ld. Raym. 1377.

16.

(c) Young's case, cited 2 East, R. 14,

(d) R. v. Higgins, 2 East, R. 19, 20, per Grose, J. See Index, tit. Merger.

Indictment for soliciting a Woman to commit Perjury, by swearing a Child to an Innocent Person (e).

That A. B. late of, &c. being a wicked and evil-disposed person, and minding and intending great injury to one C. D. of, &c. a good and valuable subject of our said lady the Queen, and unjustly to cause and procure him to be put to great charges and expense of his monies, and to give security for the maintenance of a child, of which one E. F. spinster, was on, &c. pregnant, and which by the laws of this realm was likely to become a bastard, did on the same, &c. aforesaid, at, &c. aforesaid, unlawfully and wickedly solicit, instigate, persuade, and procure the said E. F. to go before one of the justices of our said lady the Queen, assigned, &c. and that she the said E. F. in consequence of such solicitation, instigation, persuasion, and procurement, did go in her own proper person before G. H. one of the justices of our said lady the Queen, assigned, &c. and then and there did, &c. [state the filiation], whereas in truth and in fact he the said A. B. at the time when he so endeavoured to persuade, solicit, and instigate the said E. F. to make oath and swear as aforesaid, then and there well knew that the said C. D. would be put to great charges and expense of his monies, if she the said E. F. would swear as aforesaid; and whereas in truth and in fact he the said A. B. at the said time when he so endeavoured to persuade, solicit, and instigate the said E. F. to make oath and swear as aforesaid, had no reasonable or probable cause whatsoever to suspect or imagine that the said C. D. was the father of such child, but on the contrary thereof, the said A. B. was then and there informed by the said E. F. that he the said A. B. was the father of such child, of which she the said E. F. was so pregnant as aforesaid; and whereas in truth and in fact she the said E. F. never told or informed him the said A. B. that the said C. D. was the father of such child; and whereas in truth and in fact he the said A. B. so wickedly and unlawfully endeavoured to persuade, solicit, and instigate the said E. F. to swear as aforesaid, in order that he the said A. B. might be exonerated, freed, and discharged from divers expenses which might accrue to him as being the father of such child, after the same should be born of the body of her the said E. F.; against the peace, &c.

Indictment for soliciting a Witness to disobey a Subpoena to give Evidence before the Grand Jury (ƒ).

That on, &c. a certain writ of our said lady the Queen, called a subpœna ad testificandum, had been and was duly issued and tested by and in the name of P. Q. of, &c. at, &c. the same day and year aforesaid, the said P. Q. then and there being custos rotulorum in and for the said county, which said writ was directed to B. B. and D. D., by which said writ our said lady the Queen commanded, &c. [recite the

(e) To solicit, or attempt to persuade a witness to swear falsely, though such solicitation be ineffectual, is a misdemeanour at common law, R. v. Edwards, cited in Scofield's case, Cald. 400.

(f) This is an offence indictable at common law, Hawk. B. 1, c. 21. The

mere attempt to stifle evidence is criminal, though the persuasion should not succeed, on the general principle that an incitement to commit any crime is itself criminal, R. v. Phillips, 6 East, R. 464.

writ]. And the jurors, &c. that a copy of the said writ was on, &c. at, &c. duly served on the said H. H. who then and there had notice to appear and give evidence according to the exigency of such writ, and that the evidence of the said H. H. at the time of issuing the said writ, and from thence until and upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury on the said bill of indictment, so to be preferred against the said A. B. as aforesaid, and that at the sessions of the peace holden at, &c. in and for the said county, on, &c. aforesaid, such bill of indictment was preferred against the said A. B. to and before a certain grand jury then and there duly assembled in that behalf. And the jurors, &c. that A. B. late of, &c. being an evil-disposed person, and contriving and intending to obstruct and impede the due course of justice, on, &c. at, &c. unlawfully and unjustly solicited, persuaded, and prevailed upon the said H. H. to absent himself from the said sessions of the peace, holden as aforesaid, and not to appear there before the justices then and there assembled, to testify the truth and give evidence before the said grand jury on the said bill of indictment so preferred against the said A. B. as aforesaid (and the said H. H. in consequence of such solicitation and persuasion, did not so appear and give evidence according to the exigency of said writ); to the great obstruction, hindrance, and delay of public justice, in contempt, &c. to the evil, &c. and against the peace, &c. And the jurors aforesaid, upon their oath aforesaid, do further present that on the said, &c. a certain other writ of our said lady the Queen had duly issued, directed to the said B. B. and D. D. by which said last-mentioned writ, our said lady the Queen commanded the said B. B. and D. D. that, &c. [recite the writ]. And the jurors, &c. that the evidence of the said H. H. at the time of issuing the said last-mentioned writ, and from thence until and upon the said, &c. therein mentioned, was material and necessary to have been given before the said grand jury in the said bill of indictment so to be preferred against the said A. B. as aforesaid. And the jurors, &c. that the said A. B. being an evil-disposed person, &c. [same as first count, saying “endeavoured to dissuade," &c. and omitting the allegations that the solicitation was successful].

Indictment for soliciting and inciting Persons to make a Riot. First Count, for persuading them to Assemble, in consequence of which they did so.

That A. B. late of, &c. on, &c. and on divers other days and times between that day and the first day of, &c. at, &c. unlawfully, wickedly, and maliciously intended, devised, and endeavoured as much in him lay, to raise and create insurrections, riots, and tumults within this realm for the disturbance of her majesty's peace, and to the great terror and annoyance of her liege and peaceable subjects. And that the said A. B. in prosecution of his said wicked intention and purpose, and for the effecting and accomplishing thereof, on the said, &c. and on the said other days and times, at, &c. aforesaid, with force and arms, unlawfully, wickedly, and maliciously solicited, incited, encouraged, and, as much as in him lay, endeavoured and laboured to persuade, instigate, and prevail on divers other liege subjects of our said lady the Queen, whose names to the jurors aforesaid are as yet unknown, inhabiting in the said parish of C. and in the neighbourhood of the same, with force and arms unlawfully, riotously, and tumultuously to assemble and gather together, to disturb

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