that the party charged should form one of a tumultuous or riotous assemblage for the disturbance of the public peace: it is an offence that may be committed by a single individual. If by his word or gesture he incited others to commit the felony; or if he was so near to the spot at the time that he by his presence wilfully aided and assisted them in the perpetration of the crime, in either of these cases the felony is complete, without any actual manual share in its commission; and where the statute directs that, to complete the offence, it must have been done with intent to injure or defraud any person, there is no occasion that any malice or ill-will should subsist against the person whose property is so destroyed. It is a malicious act in contemplation of law, when a man wilfully does what is illegal, and which, in its necessary consequence, must injure his neighbour; and it is necessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him. Nor will it be necessary to prove that the house which forms the subject of the indictment, in any particular case, was that which was actually set on fire by the prisoner. It will be sufficient to constitute the offence, if he is shown to have feloniously set on fire another house, from which the flames communicated to the rest. No man can shelter himself from punishment on the ground that the mischief which he committed was wider in its consequences than he originally intended. Another class of offenders will be that of persons who stand charged with acts of plunder and theft; and these may come before you, either aggravated by the circumstance of violence, or threats to the person of the owner, or with the circumstance of a breaking into his dwellinghouse, or stealing the property thereout when the house was already broken open. In both which cases the offence is considered of a more aggravated nature, and the measure of punishment is consequently more severe; and the facts may assume the shape of a simple larceny of the goods of another. In all of which cases, as in the case of arson before adverted to, all who are present, assenting to, and co-operating in the act, are, in point of law, principal offenders. The only other observation I would suggest is this, -that where property which has been stolen is found in the possession of any person recently after the theft is committed, unless circumstances appear to rebut such presumption, he may be presumed guilty of the theft, until he can explain or prove his innocent possession of the property. Upon the subject of a very numerous class of cases relating to the receiving of stolen property, with the guilty knowledge that it has been stolen, I hold it to be unnecessary to offer you any observation whatever. There is, however, one case which stands in a different situation from the rest, and to which it may be proper that I should call your particular attention. I mean the case of one Lewis, who was at large upon his recognisance, but who has surrendered since, and who stands charged upon an inquest before

the coroner, with the offence of manslaughter, in shooting a boy of the name of Morris. It appears from the depositions before the coroner, that Lewis was acting in aid of the civil authorities, in assisting to clear the streets, after proclamation had been regularly made, requiring the rioters to disperse themselves, and after they had continued together for more than an hour from the time of making the proclamation. It appears also, by the testimony of the witnesses, that the pistol was not aimed at the boy who was unfortunately struck by the ball. The nature, however, of the offence committed by Lewis will not depend so much upon that fact, as upon the circumstances under which the pistol was originally discharged. If the firing of the pistol by Lewis was a rash act, uncalled for by the occasion, or if it was discharged negligently and carelessly, the offence would amount to manslaughter; but if it was discharged in the fair and honest execution of his duty, in endeavouring to disperse the mob, by reason of their resisting, the act of firing the pistol was then an act justified by the occasion, under the riot act before referred to, and the killing of the boy would then amount to accidental death only, and not to the offence of manslaughter.-Mr Lewis was acquitted.

SUPPRESSION OF RIOTS BY MILITARY INTERFERENCE.-It is said, that "in the year 1780, the law respecting the suppression of riots was so little understood, that a great deal of mischief was effected, which might otherwise have been prevented," and "that in the absence of magistrates, even soldiers stood inactive, with arms in their hands, while the greatest atrocities were committed before them." Since that period there have been many occasions on which it has been indispensably necessary to bring this law into force, and to explain its provisions; particularly at the trials of the Bristol rioters, when it was expounded at considerable length by the present Chief Justice of the Common Pleas. His lordship took that opportunity of commenting upon the duties imposed by this law upon soldiers. The surprise which was expressed in different parts of the country at the doctrine which he laid down, proved the existence of a general mis-apprehension upon the subject; and we are led to suspect, from the language which at that time was commonly used, that the grounds upon which the interference of a military force is accounted legal, and the duties to be performed and the liabilities to be incurred by soldiers, still stand in need of explanation. (See preceding article.)

There exists, however, so close a resemblance between the duties of a soldier and those of a private citizen in times of disturbance, that in order to make the one class of duties intelligible, we are obliged to give an explanation of the other. We shall proceed, then, to quote the law by which the conduct of private citizens and civil magistrates is to be regulated, and

* Handcock v. Baker, 2 B. and P. 264.

we will afterwards pass to the peculiar object of our discussion-the duty of a soldier.

By the common law,* “any private person may lawfully endeavour to suppress a riot, by staying those whom he shall see engaged therein from executing their purpose; and also by stopping others whom he shall see coming to join them :" and "private persons may even arm themselves in order to suppress a riot; from whence it seems clearly to follow, that they may also make use of arms in the suppressing of it, if there be a necessity for so doing." It should, however, be observed, that where this law is laid down, a caution is added, as to the propriety of carrying it into execution, viz., “that it seems hazardous for private persons to go so far in common cases, and that such violent methods seem only proper against such riots as savour of rebellion." The statute law, applicable to the duties of the private citizen, invariably couples them with the duties of the magistrate, or of some other peace officer; but it must be remembered, that the duties and powers of a private citizen at common law, have never been curtailed by statute and remain unaltered; while other duties, accompanied with certain formalities, have been imposed almost indiscriminately, and certainly without any reference to the distinct military or civil character, upon the whole body of the people. This principle pervades the statute of Edward III.,§ and that of George I., and all the other important statutes connected with the subject: no old duties are abolished; but to those which already existed, new and different duties are superadded.

The power of a justice of the peace to restrain rioters existed under the common law. By statutes of Edw. III. and Rich. II., he was empowered to arrest and chastise them, and to inflict upon them different punishments, according to his discretion. If two justices are present, they are empowered by 13 Hen. IV. c. 7, s. 1, "to come with the power of the county, if need there be, for the purpose of suppressing disturbance ;" and by 2 Hen. V. c. 8, s. 2, " the king's liege people, being sufficient to travel, shall be assistants to them, upon reasonable warning, to side with them in aid to resist such riots, routs, and assemblies, on pain of imprisonment, and to make fine and ransom to the king." But the statute under which justices generally act, in their endeavours to quell disturbances, is, the 1 Geo. I. c. 5., commonly called the Riot Act. One justice, or more

* See Popham, 121; Kel. 76; Chit. Burns' Just. 5, 280.

The full extent of the legal powers of a private citizen in this respect is thus explained by Lord Hale:-"If the felon resists or flies, so that he cannot be taken without killing him, this is justifiable and no felony; but still it must be, where he cannot be otherwise taken, for it is for advancement of justice and suppression of felons, and therefore, if they cannot be otherwise apprehended, it is lawful, as well as if it were a constable and had a warrant.' Pleas of the Crown, vol. ii. p. 77.

The persons who are not bound by the 2 Hen. V. c. 8, s. 2, to assist magistrates in the sup pression of riots, are women, clergymen, persons decrepit, and infants under the age of fifteen. § 34 Fdw., III., c. 1. 1 Geo. I. c. 5.

than one, is, by this statute, enjoined to repair to the scene of disturbance, and to read the king's proclamation, ordering all persons to depart peaceably to their habitations. To remain tumultuously assembled, for more than one hour after the reading of this proclamation, is made felony the magistrate and peace officer are empowered to apprehend the offenders, and to command all his majesty's subjects of age and ability to be assisting to them therein; and, by a special provision, the magistrates and their assistants are indemnified, in case any of the offenders are maimed or killed in the struggle.

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From the consideration of the common law, and of these several statutes, the duties of a private citizen may be easily collected. If no magistrates or peace officers are present, he must make his best exertions by peaceable means to check a riot, and in case any felony is attempted, he is justified in having recourse to arms. If any magistrates are present, he should put himself under their direction, and co-operate with them for the reestablishment of order. Even if they choose to adopt the formalities prescribed by a particular statute, the duties imposed and powers conferred by the common law, still remain in force and ought to be immediately executed, if any fit emergency arise. To give a familiar instance,--the Riot Act makes it felony to remain tumultuously assembled for more than one hour after the proclamation has been read; and so far as respects the provisions of the Riot Act, persons so remaining might, in the intermediate hour, be guilty of every species of mischief. The apparent defect is corrected by the provisions of the other statutes, and of the common law, according to which, as we have clearly seen, private persons as well as magistrates have full legal powers for interfering with effect.

With respect to the suppression of riots, the situation of a soldier and that of a private citizen are precisely the same. "Whatever any other class of his majesty's subjects may do, the military may unquestionably do also."* Lord Chief Justice Tindal laid down the same law in the trial of the Bristol rioters, which we have already quoted; and in the King v. Pinny, the attorney-general quoted the authorities of lords Mansfield and Thurlow to the same effect. We may add, that there is in civil law (we use the term as contradistinguished from military law) no distinction between the officer and the private soldier. They all appear in the same character of citizens, when called out to suppress riot. If the private citizen is bound to stay the riot by gentle means, so are the soldier and officer; if the private citizen is bound to obey the magistrate or peace officer, to use violent means in preventing a felony, and even to hazard the destruction of life in his exertions to maintain peace: upon the officer and soldier the same duties are incumbent in the same form and in the same degree.

* See the opinion of the late Lord Ellenborough, printed amongst the "General Orders issued to the army by the commander-in-chief, 1801."

So far then all is plain, that the soldier is not placed in a more difficult situation than the private citizen. But the soldier is bound by another law, peculiarly applied to himself, namely, the military law, or that which is contained in the Mutiny Act; and before we can clearly understand the position in which he stands, we must examine the provisions contained in this act for occasions of this nature.

Respecting our military law there prevails a great deal of error. It has often been mentioned as a law at variance with all the rest of our law; a law separate and distinct in itself, and dangerous to the public liberties; whereas it is in reality a part of the general law, consistent with other laws and recognising their existence, and by no means interfering with the general rights and liberties of the subject. Like every other law which applies directly to a peculiar class, it is partial in its operation; and it certainly restricts the privileges of that class of persons for the government of whom it is enacted. But to the general liberties of the subject it is peculiarly favourable, as it serves to restrain a body that might overpower the civil force and establish tyranny over the country; "for nothing is so dangerous to the civil establishment of a state, as a licentious and undisciplined army."* Lord Loughborough's observations upon the true nature of our military law, and its difference in character and effect from the law which generally bears that name, are so clear and so much to the point, that we are tempted to offer them at some length to the consideration of our readers. "This leads me to an observation that martial law, such as it is described by Hale, and such also as it is marked by Mr Justice Blackstone, does not exist in England at all. Where martial law is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law,' merely because the decision is by a court martial, but which bears no affinity to that which was attempted to be exercised in this kingdom, which was contrary to the constitution, and which has been for a century totally exploded. Where martial law prevails, the authority under which it is exercised, claims a jurisdiction over all military persons under all circumstances; even their debts are subject to inquiry by a military authority; every species of offence committed by any person who appertains to the army is tried, not by a civil judicature, but by the judicature of the regiment or corps to which he belongs. It extends also to a great variety of cases, not relating to the discipline of the army, in those states which subsist by military power. Plots against the sovereign, intelligence to the enemy, and the like, are all considered as within the cognizance of military authority." Again: "The army being established by the authority of the legislature, it is an indispensable requisite of that establishment that

*2 H. Blackstone, 68.