there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to a trial by their officers. This has induced the absolute necessity of a Mutiny Act accompanying the army."*

The military law, then, which prevails in this country is narrowly confined in its operation, affects none but persons receiving military pay, and affects even them only in respect of military offences. The line of distinction between the two classes of cases which fall between the civil and military jurisdictions has been established by the civil courts with a just jealousy of military interference,† so that even an inferior officer may bring an action against his superior if the limits of military authority are transgressed. Besides, one of the first provisions of the Mutiny Act is, that "nothing in this act contained shall be construed to exempt any officer or soldier from being proceeded against by the ordinary course of law;" and there is an additional precaution which prevents the act from endangering public liberties, namely, that its existence terminates with each successive year.

Such being the nature of our military law, its provisions must always be construed in accordance with the other portions of that general law, of which it is a part. The only clause of the Mutiny Act which can be made applicable to the suppression of riots is that in which the soldier is required on pain of death "to obey the legal commands of his officer." Our construction of these words may sound harshly in the ear of an advocate for rigid military discipline and the paramount superiority of officer over soldier; nevertheless, it is the true legal doctrine, that in every case the duty of obedience on the part of the soldier depends upon the legality or illegality of the command; and the soldier who does an illegal act in obedience to the command of his officer, cannot bring forward the command as a sufficient legal defence in a civil court of justice.

An objector to this doctrine will probably ask, whether the obedience of a soldier is in every case to depend upon his own judgment, whether he is to exercise his own discretion, and, in case he entertain doubts upon the legality of the orders, to set up his own opinion in defiance of his officer? Such is certainly his duty according to the laws which now prevail; nor is it in practice accompanied with so many difficulties as might perhaps have been anticipated. In time of war, almost all measures, however violent, may be legally commanded, if they are directed against an enemy; in time of peace, the routine of daily discipline is clear and simple, and leaves no room for hesitation as to the legality of the officer's commands. Amongst the few occasions on which doubts can arise, is this case of the suppression

* 2 H. Blackstone, 99.

† See Warden v. Balley, 4 Taun, 67. See 2 Geo. IV., c. 28, s. 2.

of riot. Yet even in this case the responsibility of the soldier, so far as respects the civil courts, is no greater than the responsibility of a private citizen. A private citizen, carrying deadly weapons, would not be justified in using them, because a magistrate ordered him to do so, unless the circumstances were of so aggravated a character as to justify the magistrate in giving the order;-while, on the other hand, he might be punished for neglecting to use them, if the magistrate was justified in giving the order, and he refused to obey it. Thus must he, as well as the soldier, decide upon the question of legality.

Suppose the military law were differently framed, and the word legal omitted, and the soldier were obliged to obey every command of his officer. An instance might then occur in which an officer, either through ignorance or barbarity, might give orders to fire upon a multitude, whose conduct did not justify the attack; hundreds might be butchered within a few minutes, and the whole evil be attributable to the error of a single individual. A soldier would always be justified in shedding blood, provided his commander gave the command; and the person in authority would be a giant of a hundred hands for the execution of evil. Such principles are abhorrent, not merely from the condition of free citizens, but also from the laws of humanity. Soldiers would become the objects of general apprehension, for every man would remember, that in all institutions, however well regulated and however much approved by experience, some members will always be found destitute of principle, or wholly incapable of regulating their passions, who, to gratify their feelings of revenge, or in perfect recklessness of the miseries they are producing, may employ their formidable strength in oppressing or destroying their fellow-subjects. Such a case is an extreme case, and highly improbable, and is suggested merely to show the tendency of such an alteration of the law. If the soldier is to be justified in obeying every command of his officer, the justification will include the worst as well as the best command; but if any line is to be drawn where the duty of obedience shall terminate and that of disobedience begin, we are at a loss to discover a line less inconvenient to all parties than that which is drawn upon the principle of legality.

The difference between the soldier and private citizen, when engaged in repressing disturbance, does not lie in the necessity of considering the legality of the orders which are received, but in the liability of a soldier to be summoned before a military tribunal. He is ordered to fire. If he obeys, will the jury consider the command legal? If he disobeys, will the court martial decide it to be illegal? It is the fear of this second tribunal, which, while it is unknown to the private citizen, forms the principal embarrassment to the soldier. Not that the courts martial are guided by a law which is at variance with the law admitted in all our criminal courts;

for we hope that we have given sufficient proofs that the military and civil laws are in harmony with one another, and that the command which would be declared illegal in the King's Bench, ought to meet with no approbation before a military tribunal: still we know that in the decision of such questions men are strongly influenced by their habits and general opinions; and that a scene which one man would ridicule as a temporary and unimportant ebullition of popular feeling, would by another, accustomed to the quiet regularity and sober discipline of well-organized troops, be treated as a violent commotion, dangerous to the existence of government, and to be repressed at all hazards, whether of life or property. Thus might the soldier be condemned before the court of his regiment, although his only crime was a refusal to obey his officer and fire upon a mob, when that act would have rendered him, in the eyes of a common jury, liable to a conviction for murder.

It frequently happens, that, on occasions of this nature, the minds of the jury are unjustly adverse to the soldier. No sooner has a person in the mob been killed by a soldier, than the enemies of order seize upon the event as a means of irritating the public mind, fill the newspapers with the grossest misrepresentations, conceal the violence of the mob and the danger of the soldiers, and poison the mind of the juryman before he enters upon the trial. At the funeral of the late Queen there was a determined and pre-arranged attempt to resist the commands of government, to drive back the military, and to prevent the procession from taking place. The soldiers were loaded with every abuse, attacked with stones and brickbats, and rendered incapable of performing the duties of an escort, or even of protecting their own lives without repelling force by force; thirty-five were so dangerously wounded as to be taken immediately to the hospital: yet when an inquest was held upon the bodies of the rioters who were killed, one verdict was returned of "manslaughter," and the other of "murder," apparently to the great gratification of a large portion of the community.

The riots of which we have hitherto treated, have amounted either to felonies or misdemeanors. The third species of riot, which amounts to treason, forms a less important subject of consideration than it would have formed two centuries ago; because many offences which were formerly treasons, have been declared by law to be so no longer, and of those which

* The following is a portion of the oath which is taken by the members of the court martial. “I, A. B., do swear that I will duly administer justice according to the rules and articles for the better government of his Majesty's forces, and according to an Act now in force for the punishment of mutiny and desertion, and other crimes therein mentioned, without partiality, favour, or affection; and if any doubt shall arise, which is not explained by the said articles or act, then according to my conscience, the best of my understanding, and the custom of war in like cases."

K

are still treasonable, a large proportion are now prosecuted under another character.

The statute 25 Edward IV. contains those definitions of treason which are authorities at the present day. The words of that statute within the meaning of which a riot may be brought are the following:-"If a man do levy war against our lord the king in his realm;" or "When a man doth compass or imagine the death of our lord the king, or our lady his queen, or of their eldest son and heir." The constructive treasons which were founded upon these words, during the more arbitrary periods of our history, were so numerous, that if they had retained the sanction of the law, they would have included a large proportion of the riots which have occurred during the present century. The law was happily altered in this particular by the 1st Mary, statute 12, which enacted, "That no act, deed, or offence being by act of parliament made treason, petit treason, or misprision of treason, by words, writing, cyphering, deeds, or otherwise whatsoever, shall be taken, had, deemed, or adjudged to be high treason, petit treason, or misprision of treason, but only such as be declared and expressed to be treason, petit treason, or misprision of treason in or by the act of parliament of 25th Edward III., touching treason or the declaration of treason, and none other, nor that any pains of death, penalties or forfeitures in any wise ensue, or be to any offender or offenders, for doing or committing any treason, petit treason, or misprision of treason, other than such as be in the said act ordained and provided, any statute made before or after the said 25th year of Edward the III., or any declaration or matter to the contrary notwithstanding." By this act, then, treasons have been reduced to the old standard of 25 Edward III.: yet even this class of offences is still so comprehensive as to include a large number of cases which are in these days treated as common felonies.

To show the treasonable character attaching to many of those riots which have recently taken place, we may quote the following case which occurred in 1675. "A great number of weavers in and about London, being offended at the engine loom, (which are instruments that have been used these sixty years,) because thereby one man can do as much in a day as nearly twenty men without them, and by consequence can afford his ribbands at a much cheaper rate; after attempts in Parliament and elsewhere to suppress them, did agree among themselves to rise and go from house to house to take and destroy the engine looms; in pursuance of which they did, on the 9th, 10th, and 11th of this instant August, assemble themselves in great numbers, at some places to a hundred, at others to four hundred, and at others, particularly at Stratford-Bow, to about fifteen hundred. They did in a most violent manner break open the houses of many of the king's subjects, in which such engine looms were, or were by them suspected to be; they took away the engines, and

making great fires, burnt the saine, and not only the looms, but in many places the ribbands made thereby, and several other goods of the persons whose houses they broke open; this they did, not in one place only, but in several places and counties-Middlesex, London, Essex, Kent, and Surrey, in the last of which, viz. at Southwark, they stormed the house of one Thomas Bybby, and though they were resisted, and one of them killed and another wounded, yet at last they forced their way in, took away his looms and burnt them; the value of the damage they did is computed at several thousand pounds." We might almost fancy that, in quoting this history, we were writing an account of those formidable riots which occurred in the year 1830; and we feel convinced that not merely the rioters of that year, but also the public at large, would have been surprised to learn that the offence bordered upon high treason, and that a case so precisely similar had been declared treason by five of our judges.* The criminal acts drawn up under Sir Robert Peel's superintendence declare offences of this kind, and many others, which would have formerly been punished as treasons, to be felonies; but they do not abrogate the law previously existing upon treasons; they are cumulative, and leave it to the discretion of the public prosecutor whether he shall not indict the offenders upon a charge of high treason. One of the prisoners at the Bristol trials endeavoured to turn the existence of the ancient law to his advantage. Being indicted for the commission of a felony in attacking the public prison, he attempted to put in as a plea that the offence was treason and to be punished as such, because he had openly declared during the attack that he would destroy all the prisons in the land. The judges overruled the objection, not however denying his offence to be treasonable, but asserting, that although it was treason, it might be still a felony, and prosecuted as such under the provisions of Sir R. Peel's act.†

Among the riots, then, which a soldier may be called upon to suppress, some may be misdemeanors, some felonious, others may be felonious and treasonable, and others may distinctly amount to high treason, and ought

+ Morning Chronicle, January 5th.-" Mr Palmer, on behalf of Clarke, took an objection to the indictment, contending that the evidence went to show that he had declared he would set fire to all the gaols in the kingdom, and that he was thereby guilty of high treason, in which the felony was merged. The learned counsel, therefore, submitted that the prisoner must be acquitted. The learned judges, (Tindal, Taunton, and Alderson,) however, in delivering judgment, said that the objection was not tenable. They had yet to learn that if a person who might be charged with high treason had done an act amounting to murder, arson, or other offences which might be made acts of that treason, that therefore, he was to be acquitted as such, and the crown driven to prefer an indictment for high treason; but in this case, the declarations of the prisoner were so far from the time of the acts committed, when it did not appear that he was in company of those who had been concerned with him in committing the acts themselves, that it could not be said that he was guilty of high reason."