case of Bertram and Lockie, July 17. 1792, accordingly, who were tried as accessaries to a tumult in which several violent things were done, upon a verdict finding" that Lockie was seen in the mob libelled, and threw one stone towards the soldiers," the pannel was sentenced to fourteen years' transportation, though that would have been far too severe a punishment for that single outrage standing alone.1 In like manner, in the case of the Dundee rioters, June 12. 1831, it was deemed perfectly sufficient to prove the general acts of the mob, and that the pannels were engaged in it, without specifying the acts of violence perpetrated by each individual.2 In like manner, if a mob set out with a declared intention to burn a certain house, or kill a certain person, and they carry this design into effect, all are guilty of the fire-raising or murder, though they are not the very persons who inflicted the wounds or applied the torch. In the case, for instance, of the Porteous Mob, the guilt of the murder was not peculiar to him who put the rope about the neck of the unfortunate victim, but extended to all who were active in breaking open the jail, or attending in arms at the place of execution, or in any other way co-operating in the enterprize.3

But, on the other hand, it is no less worthy of notice, that this holds only with such outrages as are the natural result of the common enterprize, and which all who engaged in it must have made up their minds to be indifferent to, when they once concurred in its adoption. It will not hold, therefore, with separate and independent acts of violence, as are not so much the object or natural and usual consequence of the undertaking, as the result of an accidental and casual ebullition of wickedness on the part of some of the actors, which went much beyond the common purpose of the assembly. Thus if a mob repair to a warehouse of grain, with intent to compel the dealer to sell at their own price, certainly all the measures calculated to constrain or intimidate his will are chargeable upon all those present, as throwing stones, breaking open his doors, threatening or maltreating his own or his servants' persons, or the like; but if, taking advantage of the opportunity thus afforded, some individuals break into the building and commit theft, or set it on fire, or murder the inmates, these ulterior and undesigned

acts of violence can be stated only against the actual perpetrators.1 So the law was laid down by Lord Justice-Clerk Boyle, Perth, autumn 1824, in the case of Thomas Marshall, George Scott, and James White, who were charged with mobbing and rioting and murder. It appeared on the proof that a mob of lads from Dundee collected near the tollbar of Stobsmuir, near Dundee, and attacked some country masons, one of whom was killed, and several severely wounded. It did not appear that there was any intention here on the prisoners' part, either of committing murder or of assaulting the masons in a reckless and outrageous manner; and the proof failed to fix the fatal blow on any one prisoner present, while it clearly shewed that one blow in particular had occasioned death, and that the prisoners were present and active in the mob. In these circumstances, it was laid down by the Court, that the acts of mobbing and rioting and assault were fairly chargeable on all the prisoners, without distinguishing who actually committed them; but that the murder, which was the result of one blow, and not of a succession of smaller injuries, and which did not appear to have been part of the general design, could be fixed only on the person who struck the fatal blow. They were convicted accordingly, and sentenced according to their degrees of guilt; Marshall to fourteen years transportation, Scott to seven, and White to twelve months' imprisonment,2

8. The pains of law, independent of special statute for mobbing and rioting, are arbitrary, varying, according to the magnitude of the offence, from a few months' imprisonment to transportation for life.

Mobbing and rioting, to whatever excess they may have led, are not punishable with a capital punishment at common law.3 Not but what, where stouthrief, murder, fire-raising, or housebreaking, are committed by a mob, they may afford materials for a capital charge and conviction; but, where this is the case, they should be charged separately against the pannels, under the name and in the form required in regard to these crimes, in the same indictment in which the minor charge of mobbing is preferred. Murder, accordingly, was combined with mobbing and rioting in the case of Maclachlan, one of the Por

1 Hume, i. 425.- Unreported.-3 Hume, i. 427.

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teous Mob, June 1737;1 and in that of Marshall, Scott and White, Perth, autumn 1824.2 Fire-raising was combined with mobbing in the case of William Spence, December 13. 1784, where the libel charged the pannel with “ being active in exciting and encouraging the said mob, and with having with his own hands set fire to the distillery." Theft and housebreaking were combined with mobbing, and sustained as relevant, in the cases of Allan Guthrie, 16th June 1716, and William Gilchrist, March 1741; and stouthrief, robbery and housebreaking, with mobbing, in the case of John Innes, November 13. 1727.5 Assault or wounding are very generally combined with mobbing, where the individual acts can be fixed on any of the pannels.

But it is to be observed in all these cases, that, where the libel is laid for a separate offence, combined with mob→ bing, that additional charge must be regulated by the rules of the common law, and the principles of art and part applicable to such offences; and the prosecutor cannot, on the proof of such charges, resort to the latitude of the principle justly admitted in the proof of violence committed under a charge of mobbing. He may unquestionably obtain a capital conviction for murder or stouthrief, when combined with mobbing, as well as when standing alone on the record; but he cannot do so by merely proving that murder or stouthrief were committed by the mob, and that the prisoner was present in the crowd, and assisting their proceedings. Under such a proof he may obtain a conviction of mobbing, warranting the infliction of the highest arbitrary pains; but, for a conviction of the capital crimes, he must bring home the perpetration of that offence individually to the pannel, just as if he stood charged with it alone.

In ordinary cases the punishment of mobbing and rioting, or rioting alone, is imprisonment, varying, according to the magnitude of the offence, from one to eighteen months. The following examples will shew the recent practice in this parti cular :-Duncan Allanach, Aberdeen, September 1827, convicted of mobbing and rioting, in a slight degree, was sentenced to three months, and William Milne to one month's imprisonment. David Mackay and William Corbet, convicted at In

6

1 Maclaurin, No. 93.2 Unreported. Hume, i. 428.1 Ibid.-3 Ibid. 429.—6 Unreported.

verness, April 24. 1827, of a more serious riot, were imprisoned nine months. James Reid, on a conviction of mobbing and assault at Ayr, September 1826, was imprisoned six months.2 Barnabas Taylor and others received nine months' confinement, for mobbing and rioting only, at Ayr, September 1826.3 The like sentence was passed, for a similar offence, at Ayr, September 1826, on James Humphry. For much more serious acts of mobbing, committed upon a sheriff-officer, when poinding for arrears of taxes, William O. Boyling and James Nielson were, at 'Glasgow, September 1824, imprisoned eighteen months. Mobbing and rioting, in opposition to an officer of the army acting in execution of his military duty, was visited with three months' imprisonment, at Inverness, autumn 1821.6 Andrew Mackay, convicted at Glasgow, September 1819, of accession to a serious riot in the streets of Greenock, was sentenced to twelve months' imprisonment. James Silliers, for a conviction of mobbing and rioting, and deforcing revenueofficers, Ayr, May 1822, was sentenced to six months' imprisonment; as was Andrew Roxburgh, on a verdict finding him guilty of riot merely, at Ayr, spring 1824.8 Alexander Macphie, John Baird, and others, were sentenced to six months' imprisonment in jail, for accession to the mob which blew up Mr Harvie's walls at Glasgow, September 1823. Ralph Forrester, one of the Reform rioters on the North Bridge of Edinburgh, where an attempt was made, though not by him, to throw the Lord Provost over the North Bridge, was sentenced to nine months' hard labour in Bridewell; as was William Lithgow, 18th July 1831, found guilty of throwing a piece of glass at Colonel Douglas, when sitting as preses of the Lanark election, on occasion of the same tumults.9

But, in more serious cases, the pains of transportation have, from a remote period, been inflicted on persons convicted of mobbing; and, in determining the degree of punishment, the Court have attended not only to the magnitude of the individual charge against the prisoner, but the spirit of the tumult of which he formed a part, and the unruly temper of the times, which rendered severe examples indispensable. Thus, on occasion of the great mobs in 1720, on account of the high price of grain, numbers of persons were transported, particularly

1 Unreported. Unreported. Unreported. Unreported. Unported. Unreported. Unreported. Unreported. Unreported. 9

Alexander and David Barry, 27th May 1720, and James Geddes, 26th May 1720. Again, on 14th October 1725, for an accession, though in regard to most of the pannels by presence merely, to the great tumult and disorders known by the name of the Shawfield Mob, Buchanan, Macfarlane, and Hamilton were scourged and transported for life, and Mitchell was transported for fourteen years. William Gilchrist, May 12. 1741, was transported seven years, for mere presence at a mob which broke into Bells' Mills, near Edinburgh.3 Richard Robertson, 16th March 1773, for presence in the mob which pulled down the house of Millfield, though without any farther accession, was transported for life.1 Bertram and Lockie, July 17. 1792, were transported fourteen years, for accession to a mob which assailed and threw stones at soldiers.5 More lately still, in the case of the Reform Riots at Dundee, when the police-office was forced open, and the prisoners liberated, on 12th June 1831, Thomas Kettle and James Barnett were transported for fourteen years, and an associate of inferior delinquency was sentenced to seven years' transportation; and, in the case of the Haddington rioters, July 16. 1831, who forced the police-office, and liberated two of the Greenlaw reformers, two of the pannels received eighteen months' and a third twelve months' confinement in Jail; the Judges, at the same time, expressing their opinion, that, but for the uncommonly good character of the accused, they could not have dispensed with transportation.6

9. By special statute, commotions within borough are punishable with confiscation of moveables, and the placing the life of the offender in the King's will, which, however, is not now held to warrant the pain of death.

By a statute of James II. 1457, c. 77, it is enacted, "That within the burrows throughout the realm, no leagues nor bandes be maid, nor zit na commotion nor rising of commounes, in hindering of the common law, but at the commandment of their head officiar. And giff ony dois in the contrary, and knawledge and taint may be gotten thereof, their gudes that ar foundin guilty therein to be confiscat to the King, and their 1 Hume, i. 419.-2 Ibid. i. 424.3 Ibid. i. 423. Ibid. Ibid. i. 425.6 Unreported.