we
doubt not may be brought from distant times, in which one or
other of the above offences has been punished in England by
Pillory or whipping or by other unusual or disgraceful
punishments and we do not say that these cases altho' they may be
old are so decidedly void of all authority that a judgment which
should now be passed in conformity to them would certainly be
held to be erroneous and bad. But we conceive that in England
such punishments have long ceased to be assigned to the offences
in question; that in this Province they have never been assigned
to them and that recent Statutes which have been passed in
England tend strongly to show that Parliament did not regard them
as punishments which in later times could be properly attached
to such offences without express Legislative sanction. We observe
that there is evidence of one of the persons charged having
pointed a loaded pistol at the Sheriff. If it had been further
stated that he had pulled the trigger or otherwise attempted to
discharge the pistol the act would have been one which in England
is felony, having been first made so by Lord Ellenborough's Act
passed in 1803; but that Act does not extend to this Province and
was never adopted or in force here and if it were otherwise,
still this case upon the facts stated is not within it. Looking
upon the act of pointing or presenting the pistol as one for
which all the rioters were equally responsible it forms an
aggravation of their riot and assault but it does not change the
legal character of their crime it would probably lead to a higher
fine or a longer imprisonment but not to a punishment of another
kind. The riot as it is described was an outrageous one and the
battery of the sheriff appears to have been violent and
cruel--the direct object and intent however seems to have been
the rescue of the Prisoner rather than to take the life of the
sheriff; and even supposing the facts would well support a
conviction for an assault on the Sheriff with an intent _to
murder him_ still by our law such intent would be merely an
aggravation of the riot and assault; it would not alter the
technical character of the crime or the description of punishment
however much it might enhance the fine or lead to increasing the
term of Imprisonmen