A common law criminal offence comprised of the public fighting of two or more persons to the terror of the public.
The offence required the coming to blows and the sentence often varied depending on the venue. An affray which occurred in Court or on church grounds would be severely punished.
The common law courts also clarified that bearing arms did not of itself constitute an affray "unless it be accompanied with such circumstances as are apt to terrify the people".
In Re May, the Supreme Court of North Carolina, in 2003 stated:
"An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public....
"'Affray' is derived from the French word effrayer, meaning to affright.
"Thus, in order to prove the offense, the State must prove beyond a reasonable doubt three essential elements of the crime: (1) that there was a fight between two or more persons; (2) that the fight occurred in a public place; and (3) that the fight caused terror to persons who qualify as members of the public."
"(T)he offense may be committed in two distinct types of locales that qualify as public places. The first type includes places generally considered public by the nature of their use or intended use. Parcels and places owned and/or maintained by either a government entity or a private business and that are open to public traffic are included in this grouping. Examples include roads, streets, highways, sidewalks, shopping malls, apartment complexes, parks, and commons....
"The second type of public place for purposes of proving an affray is private property that is situated near enough to public thoroughfares that citizens using such thoroughfares could bear witness to the altercation. Although no precise definition of such qualification has emerged from our state's case law, examples that have been held to satisfy the public place requirement include private property within view or earshot of a sidewalk or street.
"As for the third element of affray - that the fight caused terror to the people - prior cases have established that such terror may be demonstrated where the fight at issue "'affrighteth and maketh men affraid.'" Thus, it is clear that actual fear experienced by members of the public satisfies the terror element.
"(M)embers of the public were assumed to be terrorized by virtue of their presence at an alleged affray, even though there was no evidence that any of the seven spectators had actually been placed in peril. This Court, however, has not definitively resolved the question of whether "terror to the people" may simply be presumed if the fight occurs in a qualifying public place, even if no members of the public were there to witness the event. Other states that have approved such presumed terror include Alabama (concluding that an affray occurred where the fight took place at a location that could be seen from the street), and South Carolina (indicating that the affray in question took place "in the corporate limits" of a city)."
In the Public Order Act (1986) the British government replaced the common law offence with a statutory definition at ¶3 as follows:
"A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
"Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of (the above).
"For the purposes of this section a threat cannot be made by the use of words alone.
"No person of reasonable firmness need actually be, or be likely to be, present at the scene.
"Affray may be committed in private as well as in public places."
- Russell, W. O., A Treatise on Crimes and Misdemeanors (1826).
- Re May 357 NC 423.