help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanor.

"The whole action of the military when called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or defines beforehand the contin gency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions. although not a legal obligation, is a matter of the highest importance. The military come, it may be, from a distance. They know nothing, probably, of the locality or of the special circumstances. They find themselves introduced suddenly on a field of action, and they need the counsel of the local justice, who is presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyze his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified in English law in standing by and allowing felonies to be committed merely because of a magistrate's absence.

"The question whether, on any occasion, the moment has come for firing upon a mob of rioters depends, as we have said, on the necessities of the case. Such firing to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence. When the need is clear, the soldier's duty is to fire with all reasonable caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are in favor of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity exists.

"With the above doctrines of English law the Riot Act does not interfere. Its effect is to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackton Hall Colliery, an hour had not elapsed after what is popularly called the reading of the Riot Act, before the military fired. No justification for their firing can therefore be rested on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duties as oitizens and soldiers

remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime? In doing it did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided? "If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. A guilty ringleader who under such circumstances is shot dead, dies by justifiable homicide. An innocent person killed under such circumstances, where no negligence has occurred, dies by accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty."

A leading English case on the question of military assistance to the civil authorities is Redford v. Birley, 1 State Trials N.S. 1071, an action of tort against a militia officer. Lord Haldane, when Secretary of State for war, 1908, pointed out before a Parliamentary Committee that the head note of this case was misleading and that the case when analysed was not inconsistent with the current of authority. He said further (British Parl. papers, 1908, H.C. 236): The law to my mind is clear that the soldier is in no different position from anybody else. He must obey the civil authority by coming to its assistance, where it is necessary that the soldier should give assistance to the civil authority, but it must be necessary that he should do so, and excess of force and excess of display ought not to be used. The soldier is guilty of an offence if he uses that excess, even under the direction of the civil authority, provided he had no excuse as that he was bound to take the facts, as distinguished from the law, from the civil authority. Now the officer, of course, is placed in an extremely difficult position. He is in the same position as his man is. If an officer orders his own man to fire unnecessarily and clearly unnecessarily, the command of the officer does not absolve the private from his duty to obey the common law. On the other hand, under the law of the Army, the private is bound to obey his officer. He is, in other words, in peril of being, on one hand, tried and shot by a court-martial, and on the other hand, of being tried and hanged by a judge and jury. But in practice it is one of these situations which is really perfectly simple. In 999 cases out of 1,000 it does not arise. People are very sensible in this country. Two principles which may come into conflict have to be reconciled, and they are reconeiled by taking the case in the concrete. The result is that, while the commanding officer is bound to pay great respect to the opinion of the rivil authority, and on a mere question of fact, when he comes from a distance, to accept it until he sees that it is obviously wrong, he is

not absolved, in law, from his duty not to use more force than is necessary."

The following opinion of law officers of the Crown in England (Aug. 18th, 1911) on the duty of soldiers called upon to assist the police, was signed by Sir Rufus Isaacs and Sir John Simon:

“A soldier differs from the ordinary citizen in being armed and subject to discipline; but his rights and duties in dealing with crime are precisely the same as those of the ordinary citizen. If the aid of the military has been invoked by the police, and the soldiers find that a situation arises in which prompt action is required, although neither Magistrate nor police are present or available for consultation, they must act on their own responsibility. They are bound to use such force as is reasonably necessary to protect premises over which they are watching, and to prevent serious crime or riot. But they must not use lethal weapons to prevent or suppress minor disorder or offences of a less serious character, and in no case should they do so if less extreme measures will suffice. Should it be necessary for them to use extreme measures they should, whenever possible, give sufficient warning of their intention."

See Code secs. 93 and 94, notes to secs. 48-52, and secs. 80-90 of the Militia Act R.S.C. 1906, ch. 41.

Preventing proclamation.—Not dispersing.

92. All persons are guilty of an indictable offence and liable to imprisonment for life who,-

(a) with force and arms wilfully oppose, hinder or hurt any person who begins or is about to make the said proclamation, whereby such proclamation is not made;

or,

(b) continue together to the number of twelve for thirty minutes after such proclamation has been made, or if they know that its making was hindered as aforesaid, within thirty minutes after such hindrance.

Origin-Sec. 83, Code of 1892; R.S.C. 1886, ch. 147, secs. 1 and 2. Prosecution within one year]-See sec. 1140.

Duty of officers if rioters do not disperse.-Indemnification of officers. Section not restrictive.

93. If the persons so unlawfully, riotously and tumultuously assembled together, or twelve or more of them, continue together, and do not disperse themselves, for the space of thirty minutes

after the proclamation is made or after such hindrance as aforesaid, it is the duty of every such sheriff, justice and other officer, and of all persons required by them to assist, to cause such persons to be apprehended and carried before a justice.

2. If any of the persons so assembled are killed or hurt in the apprehension of such persons or in the endeavour to apprehend or disperse them, by reason of their resistance, every person ordering them to be apprehended or dispersed, and every person executing such orders, are indemnified against all proceedings of every kind in respect thereof.

3. Nothing in this section contained shall, in any way, limit or affect any duties or powers imposed or given by this Act as to the suppression of riots before or after the making of the said proclamation.

Origin]-Sec. 84, Code of 1892; R.S.C. 1886, ch. 147, sec. 3.

Arrest of rioters not dispersing in thirty minutes after proclamation] -See secs. 91, 92 (b), 93.

Neglect of peace officer to suppress riot.

94. Every sheriff, deputy sheriff, mayor or other head officer, justice, or other magistrate, or other peace officer, of any county, city, town, or district, who has notice that there is a riot within. his jurisdiction, who, without reasonable excuse omits to do his duty in suppressing such riot, is guilty of an indictable offence and liable to two years' imprisonment.

Origin]-Code of 1892, sec. 140.

Magistrate's neglect in case of riot]—If the magistrate neither reads the Riot Act proclamation (Code sec. 91) nor takes steps to restrain or apprehend the rioters, nor makes use of an available military force, such will be prima facie evidence of criminal neglect on his part. R. v. Kennett, 5 C. & P. 282; R. v. Pinney, 5 C. & P. 254; and see Code secs. 48-51.

Neglect to aid peace officer thereat.

95. Every one is guilty of an indictable offence and liable to one year's imprisonment who, having reasonable notice that he is required to assist any sheriff, deputy sheriff, mayor, or

other head officer, justice, magistrate, or peace officer in suppressing any riot, without reasonable excuse omits to do so.

Origin]-Code of 1892, sec. 141.

Neglect to aid peace officer in quelling riot]-To support an indictment for refusing to aid in quelling a riot it was held that it was necessary to prove, first, that the constable saw a breach of the peace committed; secondly, that there was reasonable necessity for calling on the defendant for his assistance; and, thirdly, that the defendant refused without any physical impossibility or lawful excuse. R. v. Brown, 1 C. & M. 314; 34 J.P. 129; and see R. v. Sherlock, L.R. 1 C.C.R. 20; 10 Cox C.C. 170; 13 L.T. 623.

Assisting in suppressing riot]"If the riot be general and dangerous, every subject may arm himself against the evil doers to keep the peace. Such was the opinion of all the judges in England in the time of Queen Elizabeth in a case called The case of Arms' (Popham's Rep., 121); although the judges add that it would be more discreet for every one in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the King in doing this. It would undoubtedly be more advisable so to do; for the presence and authority of the magistrate would restrain the proceeding to such extremities until the danger was sufficiently immediate, or until some felony was committed or could not be prevented without recourse to arms; and, at all events, the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed than any efforts, however well intended, of separated and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law." Charge of Chief Justice Tindal, quoted in R. v. Pinney, 5 C. & P. 262, note. From early times the duty of sheriffs and magistrates to suppress riots and apprehend rioters, and the obligation of the people of the country to assist them have been laid down and enforced by English Statutes. See 15 Rich. II, c. 2 (1391), 13 Hen. IV, c. 7 (1411), 2 Hen. V, st. 1, c. 8 (1414).

Justification of force in suppressing riot]-See secs. 48-51, and sec. 93 (2), and see note to sec. 91 on the use of military forces for the quelling of riots.

Peace officer]-See definition in sec. 2, sub-sec. 26.

Riotous destruction of property.

96. All persons are guilty of an indictable offence and liable to imprisonment for life who, being riotously and tumultuously