to nearly the same result, with this difference, that the English law justifies death in the case of a flying felon who cannot otherwise be apprehended, while the Scotch declines to make any such marked distinction between the pursuit of a felon and any inferior criminal or civil debtor, and is rather disposed to judge of the criminality of homicide in such a case by the degree of resistance which is offered, and the amount of risk which the officer incurs in proceeding to enforce his commission. 14. A soldier or sailor on duty shall be excused from homicide, if committed in obedience to orders from his officer, or in defence of his post or arms, if they cannot otherwise be maintained; but not for the precipitate use of his arms, or orders to fire, without such a necessity; and his privilege ceases with the termination of his duty. A soldier stands in a more favourable situation, when opposed in the execution of his duty, than even an officer of justice. He is entrusted with arms for the especial purpose of repressing disorder, trained to a nice and punctilious sense of honour, and bound under the severest pains to obey the orders of his commanders. These important considerations require a higher allowance for his forwardness in maintaining his service, whatever it is for the time; and they are, moreover, a warning to every one not to molest or meddle with him.1 An invasion with mortal weapons, or an actual and immediate danger of life, is not required to entitle him to use his weapons in maintaining his post, and defending his arms, for he is liable to death, by the mutiny act, if he lose his arms, or quit his post, without doing his utmost to defend them. Not only any invasion on him with hostile arms, therefore, but any violent attack on him with other weapons, or any outrageous or violent tumult raised against him when on duty, shall justify the use of his arms.2 Thus in the case of Wallace, 3d August 1692, it appeared that there had been a tumult in the city, and that the populace had assembled in numbers, armed with swords and firearms, against the post occupied by the pannel, who was a soldier on duty; whereupon, after warning the people not to ad 1 Hume, i. 205; Burnett, 71.-2 Ibid. vance, and their continuing to do so, he gave orders to fire, and killed a man. He was acquitted, although the violence being only such as was in preparation, and might be anticipated, would not have justified the use of arms by a private person, or civil officer of justice.1 Again, in the case of William Hunt, February 19. 1711, the pannel was charged with murder, and it was found relevant to assoilzie that the deceased was one of a rabble in the street, who had insulted, abused, and beaten some soldiers on the street; and that the pannel was one of the guard ordered out to relieve them, and that they were assaulted with poles, clubs, and shovels, before he fired. So also, in the case of John Willhouse, Thomas Turner, and others, June 15. 1730, the facts were, that the pannels had been called out to protect a cargo of contraband spirits, just seized by a revenue-officer: while posted at the house, and in the absence of the revenue-officer, the soldiers were assaulted with stones and clubs by a mob of men and women, who broke in upon the party, knocked down one of the soldiers, and struck him when down; whereupon the serjeant in command gave orders to fire, which killed one of the crowd. They were most justly assoilzied. Farther, in the noted case of Macadam and Long, 25th September 1735, it was pleaded in defence, that the pannels were quartered at Inverness, and were called by a revenue officer to assist him in the discharge of his duty. They came up with a boat with ten men, and a cargo of smuggled goods on board, armed with cudgels only: words ensued between the parties, the officer was knocked down, and thrown into the sea, the men seized and thrown down, in the attempt to wrest their arms from them, when they drew their bayonets, and a man was killed. The judge-admiral repelled the plea of duty, but the Court suspended that interlocutor, and the pannels were never again brought to trial. So in the case of Henry Hawkins, July 24. 1769, the mob had broken in upon the guard with staves and stones, and knocked down and cut Hawkins, one of their number, who thereupon drew his bayonet, and stabbed the assailants. He was acquitted. Again, in the case of Woodwert, April 1792, the accused was a soldier on duty, as sentinel, at Glasgow, when a mob began to assail him. He advised them to keep off, or he would discharge his piece, 1 Hume, i. 205.-2 Ibid. i. 206. Ibid. Ibid. i. 207. Ibid. but they continued to throw stones for some minutes, during which he made preparations as if to charge them. Several stones had struck his musket, but none his person, and, when the mob were about a musket's length off, he fired and killed a boy. It was proved that the sentinel had orders to keep his post clear, and defend his arms from the risk of seizure; and the Court being of opinion, "that a sentinel who kills in defence of his post, where he is assaulted unlawfully, and without provocation, and which he cannot leave without orders, was a case of justifiable homicide,” directed an acquittal.1 The same rule has been fully exemplified in later times, in which, indeed, the disposition to protect the military, when acting in defence of their posts, duty, or arms, has been carried even farther than in our earlier practice. Thus in the case of Henry Lloyd, 3d December 1810, it appeared, that the pannel, who was a midshipman on board the guardship at Leith, was sent with a party in a row-boat to bring to a Danish galliot, which was making for the harbour. Agreeably to usage on such occasions, he fired a shot a-head of the vessel, and she, not having come to, he soon after, from the distance of half a mile or so, fired a second shot, intended, as it was said, to pass over her, but which unfortunately took effect, and killed a man. It appeared in evidence, that the pannel had acted according to the known rules of the service, and rather within than without his commission, and he was honourably acquitted.2 It is settled law that it is resistance, in the sense of the law, if a smuggling boat do not bring to, after being hailed by a revenue cutter, known to them as such. So it was found in the case of Joseph Tough and Alexander Fortay, February 29. 1808. But while this is true on the one hand, it is equally necessary to observe on the other, that there must be a reasonable and well founded apprehension of being impeded in the discharge of their duty, or deprived of their arms, or forced in their post, before soldiers or sailors on duty will be justified in proceeding to fatal extremities. Certainly there is no authority for asserting, that a sentinel on duty is warranted in discharging his piece, or stabbing with his bayonet, the moment that he sees a crowd collecting, or that he is assailed with abusive epithets, or even struck with mud or slight missiles.1 In 1 judging of the degree of violence, real or threatened, which will justify the use of arms, the same principle is adopted which runs through the other branches of our practice, namely, that he is justified in using his arms, not merely in defence of his life against extreme danger, but in maintaining his post and arms against such odds as seriously threaten them. Thus in the case of Captain Porteous, July 19. 1736, it appeared, that, as captain of the City Guard, he was called to attend the execution of one Wilson, a smuggler, who was a favourite with the people. A violent tumult took place when the body was hanging on the gibbet, and the City Guard were assailed with stones, upon which Porteous gave orders to fire, and seventeen persons were killed or wounded. The jury, by a special verdict, found, that at the time of the firing, "the pannel and his guard were attacked and beat by several stones, of considerable bigness, whereby several of the soldiers were bruised and wounded." Upon this verdict Porteous had sentence of death, and afterwards became the victim of the well known popular tumult called the Porteous Mob. Whether this was a case of murder may be doubted, seeing that considerable violence had been used towards the soldiers, and more might reasonably have been anticipated; but that it was a case of culpable homicide cannot be questioned, seeing that the assembly of the people was at first at least for a lawful object, and therefore very different from a mob, which is convened for a tumultuous and illegal object; and that the danger, whatever it might have become, was not, at least when the order to fire was given, of that pressing kind, as to threaten serious danger to the considerable armed force by which the scaffold was surrounded.1 So also, in the case of Lieutenant-Colonel Mackenzie and others, 6th January 1803, it turned out, that the Ross and Cromarty Rangers were stationed at Aberdeen, and that some of the officers and of the soldiers on guard had garbage thrown at them; but the guard was not forced, nor had the mob any intention of doing so. Colonel Mackenzie upon this gave orders to bring a detachment from the barrack, and on their arrival retired, upon which the mob became riotous. Stones were thrown at the soldiers, and several of them struck; on which Macdonaught, the officer, gave orders to load 1 Hume, i. 210, 211. with ball. Soon after the men marched back to the barracks, during which the mob renewed their insults by hooting or hissing, but without throwing stones, or using any other personal violence. The men, on being so insulted, of their own accord wheeled round, and commenced an irregular fire against the people, by which some men were killed.1 The persons concerned in this fatal result were brought to trial on different grounds: the officers with having unnecessarily ordered out the guard, and directed them to load with ball; the sergeants with having aided and abetted the private soldiers in actually firing. The officers were found not guilty, and the libel not proven against the sergeants. It does not appear that the privates were put to the bar, though there could be no doubt they had been guilty of culpable homicide. In reviewing this decision, it seems impossible to doubt, that, considering the violence going on at the time the guard was called out, the officers were justified in taking that step; but the act of the soldiers, or the sergeants, in firing, when only assailed by verbal abuse, seems to have been precipitate, and deserving of punishment. 2 In the case of Ensign Maxwell, 15th June 1807, it appeared that the prisoner was commander of a guard of thirty-six men stationed at Greenlaw to watch the French prisoners. The soldiers had orders to fire on any prisoner attempting to make his escape, and to be particularly careful to prevent the walls being undermined. On the night in question a light was observed in the prisoner's room about an hour after the time when it should have been extinguished, and some noise was heard within. This being reported to the prisoner, he went to the window where the light appeared and knocked, and repeatedly ordered those within to put out the light, to which they paid no attention. He then ordered the sentinel to advance and fire, which not having been immediately obeyed, he repeated the order twice to fire straight through the window. This was at length done, and one of the prisoners killed. The officer was indicted for murder. It appeared on the proof that the prisoners had formerly been extremely riotous, and that, on a former occasion, an attempt to escape had required to be checked by firing. The Court were of opinion that the or 1 Burnett, 76.-2 Ibid. |