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to be treated as such. The duty incumbent upon a private person for the suppression of treason is not treated in any of our law-books distinctly from the duty of suppressing felony. Lord Hale and Serjeant Hawkins treat of both together; and having commenced the discussion upon the arrests of “traitors and felons," subsequently employ only the term of “ felons.” Indeed, t " in ancient time, every treason was comprehended in the name of felony ;” and lord Hale talks of “ treasons and other felonies ; " so that in every case of treason, a private person may safely act as in a case of aggravated felony. In many instances, the nature of the act, such as an attack upon the king's person, or upon his courts of justice, or his fortresses or troops, will leave no doubt upon the mind of any man as to the course to be pursued ; and it may be observed generally, that the aggravation of the offence will prove to him at once, that, for the purpose of checking it, the use of the most violent means will be perfectly justifiable. The same principle of law which applies to a soldier in respect of felony, will also apply to him in respect of treason. In the eye of the civil law, he acts as a private person, bound by the same duties, and subject to the same responsibility. In respect of military law, he is still bound to obey the legal commands of his officer. If no officer is present, every interference to suppress treason is legal; if an officer is present, every command issued for that purpose will be legal; if a magistrate is present, every command issued by him should be obeyed by the officer and transmitted to the soldier, and both one and the other are equally bound to obey it.
Such is the state of the law under which is to be decided, on each successive riot that occurs, the policy of having recourse to military aid. The magistrate must remember that the responsibility for consequences is not confined to himself alone ; that an improper order, on his part, may subject to capital proceedings, not merely himself, but also those persons, whether civil or military, who act under his directions; that while private individuals are to consider only their duties as private citizens, the soldier is bound by military as well as civil law; and that however harmonious the one law may be with the other, there may be moments of difficulty, in which the soldier may find himself at a loss between the several obligations which they create. Perhaps the soldier may feel sure that the occasion does not justify the use of fire-arms, even after the order to fire has been given ; or, on the other hand, he may consider his own life, or that of others about him, in such jeopardy as to require an immediate attack upon the mob, although he has received orders to remain inactive. In either
* Hale's Pleas of the Crown, vol. ii, p. 72. Hawkins' Pleas of the Crown, vol. ij.
+ Co. 3, Inst. 15.
case, he may be uncertain whether his own discretion, or the commands of his officer should be obeyed ; whether he should hazard the decision of a civil, or that of a military court: and unless his services are indispensable to the maintenance of public peace, he ought not to be exposed by the magistrate to these painful and difficult alternatives.
At the same time, when matters come to extremities when the civil power is unable to enforce the law, there is no body in this country so effective for the end in view as the regular army. In many instances, soldiers of the militias are personally acquainted with persons in the mob they and their officers, as well as the yeomen and their officers, often have as individuals a pecuniary or some other interest in the suppression of disorder. Thus they will be considered as taking part for their own private advantage, and not for the mere promotion of peace. The subjects on which riots have generally occurred,--the amount of wages, the price of food, or the support of peculiar political opinions, are such as frequently separate the farmer from the labourer, the richer from the poorer classes, the yeoman from the multitude against which he is required to act. The consequence is, that the yeomen is suspected of taking arms, not for the mere purpose of suppressing riot and protecting himself and his property, as well as his fellow subjects and their property, from the violence of intemperate men, but in order to promote his own political views, to resist claims which the multitude believe to be just, and to settle civil controversies by an appeal to the sword. Can such a motive, widely circulated by some mischievous and artful ringleader, fail to raise a general unwillingness to concede ? or to excite amongst the rioters a resolution to imitate the bad example which they fancy that they perceive in the conduct of the executive power—i. e. to vindicate by a similar recourse to arms, the opinions and claims which they are assembled to promote? We might say much of the evil consequences which are felt after peace has been re-established, of the discordance between the several ranks of society, of the heartburnings and anger and indignation with which the peasantry regard the farmer, and the artisans their master manufacturer, while they harbour the sorrowful recollection of some friend or associate who fell a victim in the struggle, and cherish a determination to take the first opportunity of vengeance. From these and many other drawbacks, which attach to the militia and yeomanry, the regular soldier is wholly exempt. Very probably he marches into the neighbourhood of the scene of action but a few days before the event occurs, and he leaves it immediately afterwards. He has no friends amongst the multitude, no interest in the circumstances out of which the disorder arises—he is the mere agent of the law, and cannot be suspected of any other desire or intention than to perform his duty as a soldier, and in obedience to the commands which he receives to overcome the enemies of order. His interference is humane, because the multi
tude know the impossibility of resistance, and retire from the struggle : it is effective, because his discipline, confidence in his comrades, and acquaintance with the use of arms, insure to him an easy victory. Thus it generally happens that life is saved, while the law is enforced.
It is obviously desirable that the people should learn to regard the executors of the law as altogether distinct from the law itself, to consider their actions as altogether mechanical and independent of the merits or demerits of the law, and in times of riot to regard them as solely endeavouring to re-establish order, without any reference to the cause from which the disturbance arose.
How this notion can gain ground, if yeomanry, or militia, or any persons principally interested in the causes of disturbance, are themselves to repress it, we are at a loss to conceive.
The superiority of the regular army over yeomanry and militia for the suppression of riot, has been long experienced in Ireland. In that country party spirit is inflamed to the highest pitch, and its bitter fruits are too plainly perceived in the distrust and personal hostility which divide all ranks of society. The yeomanry are accused (whether justly or unjustly is little to our present purpose) of partiality, violent party feelings, and an opposition to the religion of the vast bulk of the people. They constantly encounter a vigorous resistance, and their conduct is invariably misrepresented. On the other hand, the soldiers, although performing the same duties and enforcing the same laws, are generally respected, are even popular, are seldom obliged to draw the sword, but compel the restoration of order by the mere apprehension of their force.
Having explained the law as to the employment of soldiers in maintaining the public peace, we cannot help touching upon the idle complaints which have been not unfrequently made, that such an employment of them is unconstitutional, or contrary to the liberties and privileges of the subject. As we have shown that the law under which they act is consistent with the other laws by which the whole community are bound, and that in reality they are authorized to act by precisely the same law which authorizes all private individuals, we need not detain our readers by proving the complaints to be unfounded, but will merely allude to some of the causes to which the mistake may be attributed. In almost all nations, and at different periods of our history in England, the soldiers have been the agents of despotic power,—it is therefore assumed that they will again act in the same capacity: they have sometimes been employed to restrain the constitutional privilege of meeting and petitioning,-a recurrence of the same conduct is therefore anticipated. Again, they have been required to enforce obnoxious laws, laws perhaps in themselves of an oppressive character,—and the nature of the law has been confused with the character of those who carry it into execution. But the badness of a law supplies no charge against the agent who brings it faithfully into operation; and
acts of tyranny are not now to be anticipated, merely because they were committed in ancient times, when the checks and restraints upon government were adjusted less favourably to the maintenance of public liberties. If it were carefully borne in mind that the law military conforms to the civil law; that, if an arbitrary minister endeavours to employ the army for illegal purposes, there is a remedy in the civil courts ; that the refusal to re-enact the military law would at once annihilate this engine of his power ; that the number of the army depends entirely upon the legislature, and most especially upon that part of it which represents the people and has the exclusive authority over the soldiers' pay—it would at once be acknowledged that very little danger is to be apprehended from the mere employment of the military force, whilst it would be by no means difficult to prove that we should run the greatest risk by unduly diminishing it.*
PRÆMUNIRE is a species of offence more immediately affecting the king and his government, though not subject to capital punishment ; it is called præmunire from the words of the writ preparatory to its prosecution ; " præmunire facias A. B.” that is, cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged; which contempt is particularly recited in the preamble to the writ. It took its original from the exorbitant power claimed and exercised in England by the pope, which, even in the days of blind zeal, was too heavy for our ancestors to bear.
King Edward I., a wise and magnanimous prince, and justly styled the English Justinian, set himself in earnest to shake off this servile yoke. He would not suffer his bishops to attend a general council, till they had sworn not to receive the papal benediction. He made light of all papal bulls and processes ; invading Scotland in defiance of one, and seizing the temporalities of his clergy, who, under pretence of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain, thereby closing the great gulf, in which all the lands of the kingdom were in danger of being swallowed up. And one of his subjects having obtained a bull of excommunication against another, he ordered him to be executed
* The above article is extracted from the law Magazine, and is not only of itself a subject of considerable importance, and ought to be generally known, but it forms an excellent commentary on the preceding charge of lord chief justice Sir Nicholas Tindal, at Bristol.
as a traitor, according to the ancient law. And in the 35th year of his reign was made the first statute against papal provisions ; being, accord ing to Sir Edward Coke, the foundation of all the subsequent statutes of præmunire, which is ranked as an offence immediately against the king, because every encouragement of the papal power is a diminution of the authority of the crown.
In the writ for the execution of all these statutes, the words præmunire facias, being used to command a citation of the party, here denominated in common speech not only the writ, but the offence itself, of maintaining the papal power by the name of præmunire. The statute 26 Rich. II. c. 5, which enacts, “ that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, bulls, instruments, or other things which touch the king, against him, his crown and realm, and all persons aiding and assisting therein, shall be put out of the king's protection, their lands and goods forfeited to the king's use, and they shall be attached by their bodies to answer to the king and his council; or process of præmunire facias shall be made out against him, as in other cases of provisors.”
The penalties of præmunire seem to have kept the depressing power of the pope within the proper bounds of their original institution, up to the reign of Elizabeth ; but, they being pains of very considerable consequence, it has been thought fit to apply the same to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation whatever.
To molest the possessors of abbey lands granted by parliament to Henry VIII. and Edward VI. is a præmunire.
The offence of acting as a broker or agent in any usurious contract, where above ten per cent. interest is taken, is a præmunire.
To obtain any stay of proceedings, other than by arrest of judgment, or writ of error, in any suit for a monopoly, is likewise a præmunire.
To obtain an exclusive patent for the sole making or importing of gunpowder or arms, or to hinder others from importing them, is also a præmunire. On the abolition by statute 12 Char. II. c. 24, of
purveyance, and the prerogative of pre-emption, or taking any victual, beasts, or goods, for the king's use at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of præmunire. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority withoul the king, is declared a præmunire. To send any subject out of this realm a prisoner into any parts beyond the seas, is a præmunire, and also a breach of the habeas corpus act, and is incapable of the king's pardon, besides other heavy penalties. Persons of eighteen years of age, refusing to take the new oaths of allegiance, as well as supremacy,