tion of that police. He stated that the Riot Act was made upon the elevation of the family of Hanover to the throne, to prevent the disorders that might be occasioned by those who were enemies to that accession. It was not decent, he said, to speak in terms of disapprobation of a law which continued on the statute-book unrepealed; but the present, he begged it might be remembered, was the first occasion upon which a magistrate had been prosecuted under the act of 1 Geo. 1. In answer to what had been said by Mr. Attorney-General, that the act was universally understood, he (Mr. Erskine) declared he did not know any subject on which so universal an ignorance had prevailed. Men of eminence in the profession of the law had entertained doubts upon the legality of calling in the military upon tumults of the sort which formed the subject of discussion; for, in times of tranquillity and order, men do not examine into their powers to suppress or prevent disorders which they do not foresee. He observed that men did not want laws to inform them, that, when others are doing acts of felony, every man is bound, by the laws of God and of civil society, to oppose force to suppress the violence, and that without orders; and the reading of the Riot Act in such a case is unnecessary: But that this was not so understood was manifest, from the total ignorance on the subject in the most august assembly in the kingdom, where men were planet-struck on hearing the doctrine laid down by the noble and learned Lord who was then trying the cause. Mr. Erskine said, that, antecedent to the administration of the noble lord, the hunting a justice of the peace was fine fun for an Attorney-General, and many honest well-meaning men had been disgraced for the errors of their heads. This was an abuse which Lord Mansfield had corrected; and whenever an application was made to the Court of King's Bench for leave to file an information against a magistrate, (a step which every body but an AttorneyGeneral was obliged to take), the Court protected him; and, if the heart was right, would not suffer him to be harassed for errors merely of judgment. For this position he cited two cases from Sir James Burrow (a), and he contended, that on this principle, in which he should be confirmed from the Bench, the Jury must, if they should find a verdict of guilty, be convinced that his client had acted mala fide, or, in the words of the information, wilfully, obstinately, and perversely. Mr. Erskine (a) Rex v. Young, 1 Burr. 556, and Rex v. Palmer, 2 Burr. 1162. In these cases it was held, that where a justice of the peace has acted illegally, yet if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view or ill intention, the Court 1781. REX v. KENNETT. 1781. REX ย. KENNETT. observed, that cowards were always brave when danger was over; that he was not addressing the Jury in the case of an ordinary riot; a greater danger never before visited any country. The only crimes the Lord Mayor had been guilty of were those of shewing too great fear and exercising too much humanity. He reminded the learned advocates for the Crown, that they had themselves partaken of the universal panic, when imprisoned and besieged in the House of Commons. Under all these circumstances, he contended that it was too much to impute criminal neglect to a magistrate who had the inclination to do his duty, but who was distracted, and threatened with indictments at the Old Bailey, and had the horrors of massacre and murder urged to deter him from using the military. A gentleman, who knew something of the present prosecution, had alarmed him with the bloody massacre in Saint George's Fields, where an old apple woman had been shot by accident; a subject on which volumes of paper had been wasted; a gentleman, against whom he wondered the Attorney-General had not directed his vengeance, as it would have been diversion to have hunted Mr. Wilkes, a gentleman who, when called upon to co-operate for preserving the peace of the city, said he must look to his own ward, which he protected so well that the prisons of Newgate and the Fleet, and Mr. Langdale's house were destroyed in it. Mr. Erskine professed a great respect for Mr. Wilkes; but said, he believed he had more experience in raising than dispersing multitudes. Mr. Erskine enforced his arguments respecting the quo animo of the defendant, and declared, that, if he was defending his own case, he would rest his defence on the evidence produced by the prosecutor; but, in a case of such importance, he should call some witnesses, of the most respectable character, to put the subject out of all doubt. The Reverend Dr. Kennett deposed, that, on the 4th of June, at half past two o'clock, he was at the Mansion House when the Mayor came in; he brought a notice from one of the Secretaries of State, informing him there was a suspicion of a riot within his jurisdiction, and recommending to him to use every legal method to suppress it; that the witness, by his desire, wrote to the commander of the Tower, to give him notice, and to desire that a force might be in readiness. That Aldermen Clark and Peckham came; they sent for the Riot Act. About five o'clock Mr. Malo came and informed him there was an alarm of a mob; the Mayor told him of the letter which was written, and promised his assistance; that the witness wrote a second letter, at about eight o'clock, to the commander of the Tower, informing him there was a riot, and requesting the attendance of his lordship and the military force, and informing him that he would be attended from the Mansion House by the Mayor and two other Aldermen to the place of the riot. The officer wrote, that he Lord Spencer Hamilton deposed, that, having received two letters from the late Lord Mayor, on the 4th of June, he went to the Mansion House, where the defendant and two Aldermen were waiting for the detachment; that the witness had told the defendant he thought thirty men too few for him to go with, and that he would send thirty more. Mr. Kennett said he would go as soon as they arrived; that he was impatient for them, and went immediately on their arrival; that he lost no time. The witness told him he should not want men, and sent him two other detachments. Mr. Alderman Clark deposed, that in his attending the late Lord Mayor, pursuant to his summons, he found him very impatient for the arrival of the troops; when they came, they went together to the spot. The Lord Mayor exhorted the mob to depart, and threatened that if they did not he would use the military force. The witness was informed that one of the Mayor's footmen had been struck with a stone, which fractured his skull, and a very large stone hit his own hat. The firemen were afraid to act. The witness believed it was the intention and desire of Mr. Alderman Kennett to suppress the riot. The military could not have fired without destroying many innocent people. Mr. Samuel Thorp, a common councilman, deposed, that he went to the Lord Mayor, who was with the Aldermen Clark and Peckham in an adjoining house, while the mob were destroying the chapel in Moorfields. The witness inquired if the Riot Act had been read, and found it had not; the reason assigned for not doing it was the expectation of a reinforcement. No magistrate in the room disapproved the Mayor's conduct, or recommended any other. The witness said, as it was Sunday evening, in the midst of summer, the flame had drawn together a number of holiday people, who would suffer if the Riot Act was read. Upon the arrival of the reinforcement at two o'clock, the officer said-" My lord, now we have a sufficient force." The Mayor did not answer. The witness told the Mayor he did not undersand what the officer meant, for his lordship would be answerable for the mischief that might ensue; that Alderman Pugh had said they would do no mischief; and he should 1781. REX V. KENNETT. 1781. REX v. KENNETT. consider whether saving the remainder of the timber was worth involving many innocent people in the promiscuous carnage. George Brown, Secretary to the Westminster Insurance Office, deposed, that he was at the riot in Moorfields, and was two or three times in the room with the Lord Mayor, and heard an officer of the Guards say "My lord, we are now ready." His lordship's reply was-" I fancy they have done all the mischief they intend to do, and will disperse without doing more, or going to greater extremities." Upon the witness proposing afterwards to the officer to drive the mob out, he said-" Sir, we are not strong enough." Upon his cross-examination he said, he thought the number of soldiers sufficient to reduce the riot without bloodshed, and that he did prevail on many of the rioters to go home, by giving them money to drink. The Aldermen Pugh and Peckham, and many others, attended, but Mr. Erskine declined calling more witnesses. Mr. Solicitor-General, in reply, said, that there were very few facts in dispute; that the information was not founded on an abuse of magistracy, as stated by Mr. Erskine; but for making no use of the office entrusted to the defendant, and that he did no act of duty, and was therefore charged with gross neglect. No mala fides being necessary to support this information, there would be an end of the administration of justice if a magistrate could excuse himself by saying, "I was an egregious fool, and did not know my duty." He (the Solicitor-General) declared, that there were some circumstances in evidence which created a suspicion in his mind, that the defendant was not absolutely free from the diabolical and disgraceful spirit of persecution and fanaticism which disgraced that period. Lord MANSFIELD then proceeded to state to the Jury that the case before them was an information which the Attorney-General, or the authority under which he acted, had thought fit to bring before them to decide. His Lordship then stated the terms of the information, and proceeded "The common law and several statutes have invested justices of the peace with great powers to quell riots, because, if not suppressed, they tend to endanger the constitution of the country; and, as they may assemble all the King's subjects, it is clear they may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. It is well understood that magistrates may call in the military. It would be a strange doctrine, if, in an insurrection rising to rebellion, every subject had not a power to act, when they possess the power in a case of a mere breach of the peace. By the act of the 1st George the First, a particular direction is given to every justice for his conduct; he is required to read the act, and the consequences are explained. It is a step in terrorem and of gentleness; and is not made a necessary step, as he may instantly repel force by force. If the insurgents are not doing any act, the reading of the proclamation operates as notice. There never was a riot without by-standers, who go off on reading the act. The counsel for the defendant has done me the honour of attributing a doctrine respecting magistrates to me. Where any thing is in my discretion, I will never punish where the intent is good, and the magistrate has only mistaken the law; but that is only where it is in my discretion. In such a case, I always leave the party complaining to go before a grand jury; but that is not the case of the present information. This information does not charge any intent of favouring or conniving at the riots, but only a neglect of duty; and every neglect of duty depends upon circumstances. In this case the charge is proved. In law, to say, "I was afraid," is not an excuse for a magistrate; it must be a fear arising from danger, which is reduced to a maxim in law to be such danger as would affect a firm man. In this case the neglect, at first view, is proved. The witnesses have sworn that the defendant used none of the authorities vested in him by law; he did not read the proclamation, nor restrain or apprehend the rioters, or give orders to fire, or make any use of the military under his direction. But this does not exclude a defence. The defence here relied on is-" "Tis true, I did not restrain or apprehend any rioters, nor use the military; but, under all the circumstances, this was not a neglect." It is primâ facie the duty of a magistrate to read the act; but this duty depends on circumstances: he might be alone, and not able to do it. If he did what a firm and constant man would have done, he must be acquitted. If, rather than apprehend the rioters, his sole care was for himself, this is neglect. The sole question is, under all the circumstances of the case-Has the defendant laid before you the justification of a man of ordinary firmness?" His Lordship said, in a case of this sort, he would purposely avoid drawing the attention of the Jury to material parts of the evidence, which might intimate an opinion of his own. He then stated very clearly and impartially the evi dence on both sides. The Jury went out of Court before five o'clock, and his Lordship went away about six. The Jury, about seven o'clock, went to his Lordship's house, and expressed a wish to deliver a verdict, finding the neglect, but acquitting of the criminal part of the charge; but his Lordship having informed them that the verdict must be general, guilty or not guilty, and that it would 1781. REX v. KENNETT. |