assembly was, in point of fact, of a riotous character, and justified the justice in his proclamation. It is part of the ordinary duty of all justices of the peace under their commission to put down an unlawful assembly and a riot. In this difficult conjuncture their judgment, sagacity, and firmness are put to a severe trial, for they are bound to hit the mark-not to hesitate when the moment of action has arrived, not to go a hairsbreadth beyond the severity needful to stamp out the fire. And hence magistrates are sometimes indicted for breach of duty in not suppressing a riot, as was the case of the lord mayor of London in 1780 and the mayor of Bristol in 1832.1 In urgent cases the military may act without directions from the civil magistrates; and in the Gordon riots in 1780, when the king issued a proclamation and directed the military to disperse the rioters, and in consequence nearly 300 lives were lost, and half of that number more were wounded, it was held by Lord Mansfield that as the insurgents were engaged in overt acts of treason, felony, and riot, it was the duty of every subject of his majesty, and not less of soldiers than of other citizens, to resist them.2 And Lord Mansfield used to say that he was himself to blame for not having on that occasion directed force to be repelled by force, it being the highest humanity to check the infancy of tumults.3

One of the most delicate duties to which a justice of the peace has to address himself in the sudden excitement of a riot is when to resort to the aid of military force. A jealousy invariably dogs his movements at this critical point. If he is a moment too early in bringing this last resort to bear, he is too often stigmatised as tyrannical or brutal; if he is a moment too late, he is branded as imbecile and cowardly. Between these two extremes hundreds of critical eyes watch every step, and are seldom slow to mark and record every error in judgment. The duty of the justices of the peace on hearing of a riot is to meet and concert measures. Their first power is to swear in special constables under the statute of 1 & 2 William IV., c. 41; and if these be insufficient, they may request the 282 n.; R. v Pinney, 3 B. & Ad. 947; 2 21 Parl. Hist. 690, 1305. 3 Ersk.

1 R. Kennett, 5 C. & P. R. v Neale, 9 C. & P. 431. Speeches.

nearest military force to come to their assistance.1 As to the further stages, it is difficult to say more than that the duty of the justices is to act with discretion and ordinary firmness in the circumstances, both in warning the peaceable and subduing the violent; and if they can be shown to have done this, they are free from blame, however unsuccessful in their efforts to subdue the disturbance.2 It is not at all necessary that they should in person take any active part in using force.

Duty and discretion in using military force in riots.Ever since the passing of the Riot Act great jealousy has been shown by the people as to the interference of the military, and as the reign of severity often begins with this last extremity in the proceedings, it has been too often the habit, even of legislators, to denounce without thought this step as if it were an invasion of popular rights and an affront upon all the peaceably inclined. But several great authorities have from time to time corrected this delusion, and shown that military assistance is a

1 Burdett v Colman, 14 East, 164; 3 Stark. 92. 2 R. v Pinney, 3 B. & Ad. 947; 3 Stark. 105.

3 LORD HARDWICKE: "Our soldiers are our fellow-citizens. They do not cease to be so by putting on a red coat and carrying a nusket. It is well known that magistrates have a power to call any subject of the king to their assistance to preserve the peace and to execute the process of the law. The subject who neglects such a call is liable to be indicted, and being convicted, to be fined and imprisoned for his offence. Why, then, may not the civil magistrate call soldiers to his assistance as well as other men? While the king's troops act under the directions of the magistrate we are as much under civil government as if there were not a soldier in the island of Great Britain. The calling in of these armed citizens often saves the effusion of innocent blood, and preserves the dominion of the law."-9 Parl. Hist. 1294.

LORD LOUGHBOROUGH: "It has been imagined, because the law allows an hour for the dispersion of a mob to whom the riot act has been read by the magistrate the better to support the civil authority, that during this period of time the magistracy are disarmed, and the king's subjects, whose duty it is at all times to suppress riots, are to remain quiet and passive. No such meaning was within the the view of the legislature; nor does the construction of the act warrant any such notion. Magistrates are left in possession of those powers, which the law had given them before; if the mob collectively, or a part of it, or any individual within and before the expiration of that hour attempts or begins to perpetrate an outrage amounting to felony, it is the duty of all present, of whatever

natural step in the development of all riotous assemblies, and instead of aggravating the evil, seldom fails to cure it when judiciously handled. When society has been resolved into first principles, a resort to the strongest and sharpest weapon of self-defence is dictated by the voice of nature itself. Soldiers are merely citizens, who by their profession are trained to act in unison, and to bring the maximum of physical force to bear at any critical moment, when force is everything. And as all citizens are amenable to the call of the magistrate, it is natural and inevitable that they, as the strongest citizens for the moment, should be required in their turn to act, or be welcomed when they come without being required. Yet they must always act on the same principle as all other citizens must act, namely, when they repel force they must repel it by just sufficient force and no more to overcome the resistance offered. When that is the rule observed, it can be of no

description they may be, to endeavour, by the most effectual means, to stop the mischief and to apprehend the offender.”-21 St. Tr. 493.

LORD MANSFIELD: "Much mischief has arisen from a misconception of the riot act, which enacts that, after proclamation made that persons present at a riotous assembly shall depart to their homes, those who remain there above an hour afterwards shall be guilty of felony and liable to suffer death. From this it has been imagined that the military cannot act, whatever crimes may be committed in their sight, till an hour after such a proclamation has been made, or, as it is termed, the riot act is read. But the riot act only introduces a new offence-remaining an hour after the proclamation— without qualifying any pre-existing law, or abridging the means which before existed for preventing or punishing crimes.”—21 Parl. Hist. 688.

TINDAL, C. J.: “The law acknowledges no distinction 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 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."-Per Tindal, C. J., R. Pinney, 5 C. & P. 263.

consequence what is the weapon used, or how many kinds of weapons of varied strength one after the other, so long as each in succession is not used a moment too soon.

Remedy for property injured by rioters.-As riots, over and above the terror they inspire, frequently end in the destruction or injury of private property, and it would be most unjust that such private loss should go without compensation, and yet it may be difficult to fix on the party really responsible, care has been taken, ever since the Riot Act of 1714, to provide a remedy sufficient to recoup innocent proprietors; and the remedy provided is a proceeding against the hundred, if in a county, and against the town or liberty if elsewhere. In other words, the inhabitants of the district have to pay the damage done by this social outbreak. The enactment now providing for recourse in case of riot against the hundred was revised in 1827. It specifies chapels, houses, buildings, and machinery, shipwrecks, and other things, and declares that if these shall be feloniously demolished or destroyed, wholly or in part, the hundred or such like district shall be liable to yield full compensation to the person damnified, not only for the damage done to the buildings or subjects, but also for any damage at the same time done to the fixtures, furniture, or goods in such buildings or erections. chief qualification is, that the person injured shall within seven days after the offence go before a justice of the peace, and state on oath the names of the offenders, if known, and the other circumstances, and become bound by recognisance to prosecute the offenders when apprehended. If the scene of the riot is in a city, or town, or liberty, not subject to the county rate, a like remedy is obtained against a peace officer of the place, and a rate is then made by him on the inhabitants, so as to make up the sum required.2 In all cases above 307. damage, the remedy is by action, and this must be commenced within three calendar months after the offence committed. The action is nominally against the chief constable of the district, who is bound to go to two justices of the peace, who in some cases will consent to his suffering judgment to go by default. The treasurer of the county ultimately pays the 17 & 8 Geo. IV. c. 31, §§ 2, 3 ; 2 & 3 Wm. IV. c. 72 ; 17 & 18 Vic. c. 104, § 477. 27 & 8 Geo. IV. c. 31, § 15.

The

expense in the first instance, and the justices of the peace in general or quarter sessions levy a rate on the inhabitants of the hundred or district, to reimburse the treasurer and constable.1

In cases where the damage done by the rioters is 307. or less, a written statutory notice of the claim must be given, within seven days after the offence, to the chief constable, who is to exhibit the same to two justices of the peace. These justices appoint a special petty session of all the justices in twenty days thereafter, for the purpose of hearing and determining the claim. When they settle the claim, they make an order on the treasurer of the county or borough fund, and ultimately a rate is made for reimbursement on the inhabitants of the county or town.2 In all such cases, as the statute has given the specific remedy, that remedy must be pursued, and the directions therein contained scrupulously followed.

In applying these statutes, the compensation given to the individual has been interpreted to mean the expense of replacing the premises in their former state.3 And as a reversioner may be damnified as well as a tenant in possession, his claim also is made good. And the statute enables the rector, vicar, curate, or chapelwarden to make the claim in respect of any church or chapel injured.5 By this process a somewhat rough kind of justice is done in making all those who have property in the locality share the burden of the disorders that break out in their neighbourhood, and as to the origin of which they may all have either in some way contributed, or at least have had more to do than remoter neighbours.

What is an affray?-After riots, routs, and unlawful assemblies, there still remains another specific offence which tends to cause terror and apprehension to bystanders, and requires some notice. An affray is, strictly speaking, nothing more than an assault committed in a public place and in a conspicuous manner, and is so called because, as Coke says, it affrighteth and maketh men afraid.6 Such a case occurs where two persons fight in

1 7 & 8 Geo. IV. c. 31, §§ 3, 6, 7; 32 & 33 Vic. c. 47. 27&8 Geo. IV. c. 31. § 8. 3 D. Newcastle v Broxtowe, 4 B. & Ad. 273. B. & C. 135. 5 7 & 8 Geo. IV. c. 31, § 11.

4 Pellew v Winford, 9 6 3 Inst. 158.

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