able; and it becomes essential for the sake of clearness to state succinctly what is the law which bears upon the subject. By the law of this country everyone is bound to aid in the suppression of riotous assemblies. The degree of force however which may be lawfully used in their suppression depends on the nature of each riot, for the force used must always be moderated and proportioned to the circumstances of the case and to the end to be attained.

The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. . . . The necessary prevention of such outrage on person or property justifies the guardians of the peace in the employment against a riotous crowd of even deadly weapons. Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and in these days of improved rifles and perfected ammunition without some danger of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expedient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanour.

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 every contingency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions, though 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 council 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 importance, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage 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. . . be necessary to stop or prevent such 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 or property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favour 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 only 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 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 upon 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 an outrage had to be prevented. All their common law duty as citizens 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

conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, the where no negligence has occurred, dies by an 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.

The Report was signed by

(Lord Justice) BOWEN ALBERT K. ROLLIT

R. B. HALDANE.

(Parliamentary Papers, c. 7234, December 6, 1893.)

XXVII

STOCKDALE v. HANSARD

2 Victoria, 1839.

[This was an action, or series of actions, in which the plaintiff, John Joseph Stockdale, sued Messrs. Hansard, the printers to the House of Commons, for libels contained in Parliamentary Papers, viz. "Reports of the Inspector of Prisons of Great Britain." The defendant, represented by the Attorney-General at the request of the House, pleaded the previous authority and order of the House of Commons for the publication, and a resolution of the House (after action brought) declaring its power to authorise the publication of such of its reports, notes, and proceedings as it should deem necessary or conducive to the public interest. The action for libel was tried before Lord Denman, C.J., and a special jury on February 7, 1837, and resulted in a verdict for the plaintiff. The second action arose out of a demurrer which was argued before Lord Denman, C.J., and Justices Littledale, Paterson, and Coleridge on April 23, 24, 25, May 28 and 31, and judgment was given on May 31, 1837. The court held that: (1) it had jurisdiction to inquire into the existence and extent of the privilege or power alleged in the plea; (2) the resolution and declaration of the House of Commons did not prevent the court from such inquiry; (3) the privileges of the House did not include the power to authorise the publication of the libel to the general public as distinguished from the members of the House; (4) declarations of the House of its own privileges ought to be treated with all possible respect as authorities, but were not conclusive. Judgment was accordingly given for the plaintiff, Stockdale. The extracts given are (a) the resolutions of the House of Commons in question; and (b) passages from the

Judge's decision illustrative of the view taken by the court. The other three actions which arose out of this are of purely technical interest. A full report of all five actions will be found in State Trials (New Series), iii. pp. 723 et seq. As a result of the judicial decisions an Act of Parliament was passed (3 and 4 Vict. c. 9), in virtue of which in respect of publications ordered by either House of Parliament any person may produce before a court of law a certificate from the Lord Chancellor or the Speaker of the House of Commons that the publication was under the authority of the House of Lords or House of Commons, and such court shall then stay all proceedings. For the whole question see Anson, L.C. i. pp. 169-177; Erskine May, C.H. ii.; Porritt, U.H.C. i. 584–596; Broom, C.L. 875-983.]

RESOLUTIONS OF THE HOUSE OF COMMONS

Resolved, That the power of publishing such of its reports, notes and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional function of Parliament, more especially of this House, as the representative portion of it.

Resolved, That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision, before any court or tribunal elsewhere than in Parliament is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure and to the punishment consequent thereon.

Resolved, That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament.

(C.J. May 31, 1837, xcii. 419.)

Lord Denman, C.J.: This was an action for a publication defaming the plaintiff's character, by imputing that he had published an obscene libel. The plea was that the inspectors of prisons made a report to the Secretary of State, in which improper books were said to be permitted in the prison of Newgate; that the Court of Aldermen wrote an answer to that part of the report, and the inspectors replied repeating the statements, and adding that the improper books were published by the plaintiff. That all these documents were printed by and under orders from the House of Commons, who had come to a resolution to publish and sell all

the papers they should print for the use of the Members, and who also resolved, declared, and adjudged that the power of publishing such of their reports, votes, and proceeding as they thought conducive to the public interest, is an essential incident to the due performance of the functions of Parliament, more especially, etc. The plea, it is contended, establishes a good defence to the action on various grounds.

1. The grievance complained of appears to be an act done by order of the House of Commons, a court superior to any court of law, and none of whose proceedings are to be questioned in any way. This principle the learned counsel for the defendant repeatedly avowed in his long and laboured argument; but it does not appear to be put forward in its simple terms in the report that was published by a former House of Commons.

It is a claim for an arbitrary power to authorise the commission for any act whatever on behalf of a body which in the same argument is admitted not to be the supreme power in the State.

The supremacy of Parliament, the foundation upon which the claim is made to rest, appears to me to completely overturn it, because the House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make or unmake the laws; but the concurrence of the three legislative estates is necessary: the resolution of any one of them cannot alter the law or place anyone beyond its control. The proposition, is, therefore, wholly untenable, and abhorrent to the first principles of the constitution of England.

2. The next defence involved in this plea is that the defendant committed the grievance by order of the House of Commons in a case of privilege, and that each House of Parliament is the sole judge of its own privileges. This last proposition requires to be first considered. For, if the Attorney General was right in contending, as he did more than once in express terms, that the House of Commons, by claiming anything as its privilege thereby makes it a matter of privilege, and also that its own decision upon its own claim is binding and conclusive, then plainly this court cannot proceed in any inquiry into the matter, and has nothing else to do but declare the claim well founded because it has been made.

This is the form in which I understand the committee of a late House of Commons to have asserted the privileges of both Houses of Parliament, and we are informed that a large majority of that House adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by