unless they have superior knowledge on the subject: and the direction. in this case did not take away from the jury the power of acting on their own judgement. Besides, if the judge be mistaken in his view of the law, his mistake may be set right by a motion for a new trial; but if the jury are wrong in their view of it, it is not so easy to rectify their mistake.

(From the judgment of Bayley, J.)

Another ground for the motion was, that the learned Judge gave his own opinion to the jury upon the character of the publication in question, expressing himself at the same time somewhat to this effect: You are to say whether you will adopt this opinion or not; and unless you are satisfied that I am wrong, you will take the law from me. This was supposed to be contrary to, or at least beyond, the duty of the Judge, as prescribed by the statute to which I have just alluded; it was, however, in my opinion, not only not contrary to, or beyond, the duty of the Judge, as prescribed by that statute, but in strict conformity to it. The clauses of the statute have been referred to. If the Judge is to give his opinion to the jury, it must be not only competent but proper for him to tell the jury, if the case will so warrant that in his opinion the publication before them is of the character and tendency attributed to it by the indictment; and that, if it be so in their opinion, the publication is an offence against the law. This has been repeatedly done by different Judges within my experience, and I am not aware of any instance in which it has been omitted. The contrary has sometimes occurred, in cases where the Judge has thought that the matter of the publication was innocent; but those cases also are instances of an opinion given, and not of silence on the part of the Judge, as to the law of the case. The statute was not intended to confine the matter in issue exclusively to the jury without hearing the opinion of the Judge, but to declare that they should be at liberty to exercise their own judgement upon the whole matter in issue, after receiving thereupon the opinions and directions of the Judge. For these reasons I am of opinion that the rule ought to be discharged.

(From the judgment of Abbot, C.J.)

Best, J. I entirely agree with my Lord Chief Justice and my brother Holroyd in the opinion that, if a libel be written in one county and published in another, the libeller may be prosecuted in either.

XXVI

THE CASES OF THE BRISTOL RIOTS, 1831-2.

[On October 29, 30, 31, 1831, there had been riots at Bristol, and a special Commission was sent down to try the prisoners concerned in these riots. The various trials furnished some very important rulings from the Bench on the nature of Riot, and the legal relations of the subject to the executive. See S.T. (N.S.) iii. 2-567; Broom, C.L. 521-795; Dicey, L.C. passim.]

I

The law of England hath, accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made an ample provision for preventing such offences, and for the prompt and effectual suppression of them when they arise. . . . In the first place by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up with the rest; and not only has he the authority, but it is his bounden duty, as a good subject of the King to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evildoers, to keep the peace. Such was the opinion of all the judges of England in the time of Queen Elizabeth, in a case called 'the Case of Armes,' (Popham's Rep. 121) although the judges add that it would be more discreet for everyone in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the King, in the doing of it.

It would undoubtedly be more advisable so to do; for the presence and authority of the magistrate would restrain the proceedings to such extremities, until the danger was sufficiently immediate, or until some felony was either 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. And whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that the law acknowledges no distinction in this respect between the soldier and the private citizen. 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 also 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 ought to operate in a still stronger degree with a military force. But where the danger is pressing and immediate, where a felony has actually been committed, or cannot otherwise be prevented, and from the circumstances of the case no opportunity is offered of obtaining a requisition from the proper authorities, the military subjects of the King, like his civil subjects, not only may, but are bound, to do their utmost, of their own authority, to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people. . . . Gentlemen, still further, by the Common Law, not only is each subject bound to exert himself to the utmost, but every sheriff, constable, and other peace officer is called upon to do all that in them lies for the suppression of riot, and each has authority to command all other subjects of the King to assist them in the undertaking. By an early statute, which is still in force (the 13 Hen. 4. c. 7), any two justices, together with the sheriff or under-sheriff of the county, shall come with the power of the county, if need be, to arrest any rioters, and shall arrest them; and they have power to record that which they see done in their presence against the law, by which record the offenders shall be convicted, and may afterwards be brought to punishment. And here I most distinctly observe that it is not left to the choice or will of the subject, as some have erroneously supposed, to attend or not to attend to the call of the magistrate, as they think proper; but every man is bound, when called upon, under pain of fine or imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost in assisting him to suppress any tumultuous assembly; for

...

in the succeeding reign another statute was passed, which enacts that the King's liege people, being sufficient to travel in the counties where such routs, assemblies, or riots be, shall be assistant to the justices, commissioners, sheriffs, and other officers upon reasonable warning. . . to ride with them in aid to resist such riots, routs, and assemblies, on pain of imprisonment, and to make fine and ransom to the king (2 Hen. V. st. 1. c. 8). . . . In later times the course has been for the magistrate, on occasion of actual riot and confusion, to call in the aid of such persons as he thought necessary, and to swear them as special constables. And in order to prevent any doubt, if doubt could exist, as to his power to command their assistance by way of precaution, the statute 1 Geo. 4. c. 37, and since that has been repealed by the still more recent Act of 1 and 2 Will. 4. c. 41, the statute last referred to has invested the magistrate with that power in direct and express terms, when tumult, riot, or felony, was only likely to take place, or might reasonably be apprehended. Again, that this call of the magistrate is compulsory, and not left to the choice of the party to obey or not, appears from the express enactment in the latter Act, that, if he disobeys, unless legally exempted, he is liable to the penalties and punishments therein specified.

But the most important provision of the law for the suppression of riots is to be found in the statute 1 Geo. 3. st. 2. c. 5. by which it is enacted. (Here follow the main clauses of "the Riot Act."1)

. . . Such are the different provisions of the law of England for the putting down of tumultuary meetings; and it is not too much to affirm that if the means provided by the law are promptly and judicially enforced by the magistrate, and honestly seconded by the co-operation of his fellow-subjects, very few and rare would be the instances in which tumultuous assemblages of the people would be able to hold defiance to the laws.

(From the charge of Tindal, C.J., head of the Special Commission, to the grand jury, S.T. (N.S.), iii. 4–7.)

II

You will take into consideration the circumstances in which a man is placed. He is bound to hit the exact line between an excess and what is sufficient in point of law he is bound to do it... the law requires that, whether a man seeks an office or is compelled to accept it, he should do his best. . . . A man is bound by law to do his duty, and you are to consider whether he has done his duty or

1 See p. 113.

...

not. Has the defendant done all that he knew was in his power to suppress the riots, that could reasonably be expected from a man of honesty, and ordinary prudence and activity, under the circumstances in which he was placed? . . . Did he use those means that the law requires to assemble a sufficient force to prevent the mischief that an honest man ought to have done, by his own personal exertion? ... I lay down to you as the general duty of justices as to riots; they are to keep the peace and to pursue and arrest rioters; and to enable them to do that they are empowered to call upon the King's subjects to aid them in suppressing riots when they shall be reasonably required. Therefore in the case of riot, the Common Law obligation upon a justice is to call upon the King's subjects to aid him in suppressing the riot. . . . You will have to consider whether that has been done upon this occasion. . .

...

(From the charge of Littledale, J., to the jury in Rex v. Pinney (the Mayor of Bristol). Pinney, it should be noted, was charged with wilful neglect of his duty as magistrate, to suppress, or aid in suppressing, the riot in question. The trial took place in the Court of King's Bench, October 25, 1832, and the jury brought in a verdict of Not Guilty.)

III

It appears from the evidence of Mr. Stallwood that the proclamation contained in the Riot Act was not read. Now, a riot is not the less a riot nor an illegal meeting the less an illegal meeting because the proclamation of the Riot Act has not been read, the effect of that proclamation being to make the parties guilty of a capital offence, if they do not disperse within an hour; but, if that proclamation be not read, the common law offence remains, and it is a misdemeanour, and all magistrates, constables and even private individuals are justified in dispersing the offenders; and if they cannot otherwise succeed in doing so, they may use force....

(From the charge to the jury of Gaselee, J., in Rex v. Fursey, July 4, 1833. S.T. (N.S.), iii. pp. 565, 566.)

IV

(As a supplement to the rulings in the cases arising out of the Bristol Riots, the salient passages from the Report on the Featherstone Riots in 1893 are here cited, because they express with great clearness and force the law relating to the subject.)

We pass next to the consideration of the all-important question whether the conduct of the troops in firing on the crowd was justifi