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III., before quoted. “ Moreover, there is another manner of treason, when a servant slayeth his master, or a wife her husband ; or when a man, secular or religious, slayeth his prelate, to whom he oweth faith and obedience.”
As before named, high treason can only be committed against the king, petit treason is therefore incurred against a subject. But no person can be convicted but on the oath of two credible witnesses, or on confession. (1. Ed. VI.) The judgment for petit treason is, that he shall be drawn to the place of execution, and there hanged by the neck till he be dead; the judgınent against a woman is, that she shall be drawn to the place of execution and there burnt. The consequences of attainder, are forfeiture of lands, (to the lord of the fee,) and of goods, loss of dower, and corruption of blood. Although there cannot be accessories in high treason, yet in petit treason there may be accessaries both before and after the fact.
MISPRISION OF TREASON.—The word misprision is derived from the French word mespris, which properly signifies neglect or contempt ; and therefore, misprision of treason, in legal understanding, signifies, when one knows of any treason, though neither a party in it, nor consenting to it, yet conceals it, and does not reveal it in convenient time. Every man, therefore, that knows of a treason, ought with all speed to reveal it to the king, his privy council, or other magistrate. But it appears that misprision of petit treason is not subject to the judgment of misprision of high treason, but is only punishable by fine and imprisonment, as in the case of misprision of felony.
The judgment of misprision of treason is, to be imprisoned during life, to forfeit all his goods for ever, and the profits of his lands during life. *
The most luminous statement of the law with regard to riots, was given by lord chief justice Sir Nicholas Tindal, in a charge to the grand jury at Bristol, on 2d January, 1832, at the opening of the commission for the trial of the rioters in that city, and which is here annexed ; as having been delivered solemnly from the judgment-seat, it must be considered as the law of the land.
GENTLEMEN OF THE GRAND JURY,–We are assembled on the present occasion, by virtue of the special commission of his majesty, for the purpose of inquiring into, hearing, and determining certain charges of no ordinary stamp and character, founded upon acts of tumultuous outrage,
* Burns' Justice, vol. i.
violence, and rapine, which have recently taken place in this city. I am unable from any information which has been placed before me, to assign the cause, or to trace the exact origin of these enormities you are now called upon to investigate. It appears, however, that a few hours before they were committed, a tumultuary assemblage of the people gathered itself together, with an object, and for a purpose, which no honest man, or well-wisher of the laws of his country can sufficiently reprobate,-1 mean the open and avowed purpose of treating with insult and indignity, if not personal violence, a gentleman placed in a high judicial station, bearing the authority of his sovereign, in the administration of the criminal law within this city, and during part of the very time, engaged in the actual exercise of his judicial functions. It is to be collected from the depositions which I have seen, that the outrages which will form the immediate subject of your inquiry, commenced at about the time of dusk on Saturday evening, the 29th of October last, and continued with short intermission, until four o'clock on the Monday morning, when, after the riot act had been read, and the persons assembled, notwithstanding the proclamation, had refused for more than an hour to disperse themselves, the further progress of the riot was arrested, and the tumult entirely suppressed by the vigour of the military called in to the aid of the civil magistrate. It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property; and although every sinple act of violence, and each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risings and tumultuary meetings of the people, in a more especial and particular manner produce this effect; not only removing all security both for the person and property of man, but, for the time, putting down the law itself, and daring to usurp its place. The law of England hath accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences, and for the prompt and effectual suppression of them whenever they arise; and I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose effect. In the first place, by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled ; he may stay those who are engaged in it from executing their purpose ; he may stop and prevent others whom he shall see coming up, from joining the rest; and not only has he the authority, but it is his bounden duty as a good subject of the king, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evil
doers to keep the peace. Such was the opinion of all the judges in the time of Queen Elizabeth, in a case called “ The Case of Arms,” (Popham's Rep. 121)—although the judges add,“ that it would be more discreet for every one in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the king in doing this.” It would undoubtedly be more advisable so to do, for the presence and authority of the magistrate would restrain the proceeding to such extremities until the danger was sufficiently immediate, or until some felony was either committed, or could not be prevented without recourse to arms, and at all events the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed, than any efforts, however well intended, of separate and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object, will be supported and justified by the common law; and whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation, and invested with the same authority to preserve the peace of the king, as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose, when the occasion demands it, without the requisition of the magistrate, so may the other too; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same. Undoubtedly the same exercise of discretion which requires the private subject to act in subordination to, and in aid of, the magistrate, rather than upon
his own authority, before recourse is had to arms, ought to operate in a still stronger degree with a military force. But when the danger is pressing and immediate, where a felony has actually been committed, or cannot otherwise be prevented, and from the circumstances of the case, no opportunity is offered of obtaining a requisition from the proper authorities, the military subjects of the king, like his civil subjects, not only may, but are bound to do their utmost, of their own authority, to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people. Still further, by the common law, not only is each private subject bound to exert himself to the utmost, but every sheriff, constable, and other peace-officer is called upon to do all that in them lies for the suppression of riot, and each has authority to command all other subjects of the king to assist them in that undertaking. By an early statute which is still in force, (the 13th Henry IV. c. 7.) “Any two justices,
together with the sheriff, or under-sheriff of the county, shall come with the power of the county, if need be, to arrest any rioters, and shall arrest them ; and they have power to record that which they see done in their presence against the law, by which record the offenders shall be convicted, and may afterwards be brought to punishment.” And here I must distinctly observe, that it is not left to the choice or the will of the subject, as some have erroneously supposed, to attend or not, the call of the magistrate as they think proper ; but every man is bound when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost in assisting him to suppress any tumultuous assembly. For in the succeeding reign, another statute was passed, which enacts, “ That the king's liege people, being sufficient to travel, shall be assistant to the justices, sheriffs, and other officers upon reasonable warning, to ride with them in aid, to resist such riots, routs, and assemblies, on pain of imprisonment, and to make fine and ransom to the king." In the explanation of which statute, Dalton, an early writer of considerable authority, declares that the justices and sheriff may command, and ought to have the aid and attendance of all knights, gentlemen, yeomen, husbandmen, labourers, tradesmen, servants, and apprentices, and of all other persons being above the age of fifteen years, and able to travel. In later times, the course had been for the magistrates on occasions of actual riot and confusion, to call in the aid of such persons as he thinks necessary, and to swear them as special constables; and in order to prevent any doubt, if doubt could exist, as to his power to command their assistance by way of precaution, a recent statute, 1 Geo. IV. C. 37, has invested bim with that power, in direct and express terms, when riot and felony is only likely to take place, or may reasonably be apprehended. Again, that this call of the magistrates is compulsatory, and not left to the choice of the party to obey or not, appears from the express enactment in that act—that if he disobeys, unless legally exempted, he is liable to the same fines, penalties, and punishments as persons refusing to take upon them the office of constable, were by law subject to. But the most important provision of the law for the suppression of riots is to be found in the statute 1 Geo. I. sect. 2, c. 5, by which it is enacted, that if any persons, to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, and being required or commanded by any one or more justice or justices, or by the sheriff, &c., by proclamation to be made in the king's name, and in the form stated in act, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more, rotwithstanding such proclamation, unlawfully, riotously, and tumultuously remain or continue together for the space of one hour after such command or request, made by proclamation, then such continuing together shall be
adjudged felony, and the offenders shall suffer death as felons. Such are the different provisions of the law of England for the putting down of tumultuary meetings; and it is not too much to affirm, that if the means provided by the law are promptly and judiciously enforced by the magistrate, and honestly seconded by the co-operation of his fellow subjects, very few and rare would be the instances in which tumultuous assemblages of the people would be able to hold defiance to the law. Before I proceed to the consideration of the cases in the calendar, let me impress on the attention of all those who from idleness, curiosity, or mere thoughtlessness, suffer themselves to form part of a riotous or disorderly meeting, that they subject themselves unconsciously to the danger of a punishment for crimes which they never contemplated; for where many are collected together in the prosecution of an illegal object, it is often impossible to discriminate between the active and the unoffending part of the mob; it requires evidence on the part of the accused, which they may not be able to produce, in order to defend themselves against the charge of participation in the guilt of others. The only safe course for the peaceable and well-disposed on all occasions of popular tumult is this--to lend their ready aid to assist the magistrates in suppressing it, or at all events forthwith to separate themselves from the others. One class of cases likely to come before you will be founded upon the statute 7 and 8 Geo. IV. c. 30, s. 8, by which it is enacted, that “ if any person riotously and tumultuously assemble together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy any house, stable, coachhouse, outhouse, warehouse, office, shop, mill, &c., every such offender is guilty of felony, and being convicted there. of, shall suffer death as a felon.” In cases of this description, you will consider whether the individual charged was one of the persons constituting a riotous assemblage which was effecting the destruction of the building. If he formed a part of such riotous assembly the time the of demolition began, or if he joined such riotous assembly, so as to co-operate with them whilst the act of demolition was going on, and before it was completed, in either case he comes within the description of the offence, and within the penalties imposed by the act, although he may not have been a person who actually assisted by his own hand in the demolition of the building. But the more numerous class of cases seems to be, that which is founded on the second section of the same statute, by which it is enacted, " that if any person shall unlawfully and maliciously set fire to any house or other building mentioned above, whether the same shall be in possession of the offender, or in that of any other person, with intent thereby to injure or defraud any person, every such offender shall be guilty of felony, and being convicted thereof shall suffer death as a felon.” In this offence, you will perceive it is no constituent part of the description in the statute,