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." (See Report of Charge, 5 C. & P. 262.) This charge was referred to by Lord Denman, during the recent assizes, and recognized as being the undoubted law, and also by Mr. Justice Patteson in his charge to the grand jury at Westminster, in Easter term. It follows from the right to quell riotous disturbances by force, that those who resist will be criminally responsible for the consequences, and all acting in concert will be equally guilty in point of law. If death ensues in such an assembly, it would amount to murder, so that many may suffer for the violent acts of their companions, although individually they would have abstained from such a degree of crime.

Lord Chief Justice Tindal further said :

"By the common law, not only is each private 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 that 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 must 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 the call of the magistrate, as they think proper, but every man is bound, when called upon, under pain of fine and 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, shall

be assistant to the justices, 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.' In explanation of which statute, Dalton, an early writer of considerable authority, declares, 'that the justices and sheriff may command and ought to have the aid and attendance of all knights, gentlemen, yeomen, husbandmen, labourers, tradesmen, servants and apprentices, or all other persons being above the age of fifteen years and able to travel (a).'”

The consequence of a subject being bound to assist a constable when called upon, is, that, should he refuse, he is indictable for a misdemeanor. Nor is this a mere theoretical liability, as may be illustrated by arecent case, where, on the occasion of a prize fight, a police constable charged the defendant to aid and assist him in quelling the riot. The constable was doing his duty, because the breach of the peace was going on, which he was bound to stop without waiting for a warrant. The defendant was found guilty, and Mr. Baron Alderson thus explained what was necessary to make the refusal an offence.

"Firstly, you must be satisfied that the constable saw a breach of the peace. Secondly, you must be satisfied that there was a reasonable necessity for the constable Herbert calling upon other persons for their assistance and support; and, in this case, there is no doubt that the constable could not by his own unaided exertions have put an end to the combat. Lastly, the prosecutor must prove that the defendant was duly called upon to render his assistance, and that without any physical impossibility or lawful excuse he refused to give it. Whether the aid of the defendant, if given, would have proved sufficient or useful, is not the question or criterion. Every man might make that excuse, and say, that his individual aid would have done no good; but the defendant's refusal may have been, and, perhaps was, the cause of that of many others. Every man is bound to set a good example

(a) This should be "work," the Norman-French word being "travailler."

to others, by doing his duty in preserving the public peace." (Reg. v. Brown, 1 Car. & M. 314.)

The defendant was found guilty.

Persons so assisting a constable are as much under the protection of the common law as the constable, and the ger.eral rule is that where persons having authority to arrest or imprison, using the proper means for that purpose, and are resisted in so doing and killed, it will be murder in all that take part in such resistance. (1 Russell on Crimes, 535).

This however does not justify unnecessary violence or any malicious conduct, for the law always supposes that its servants will exercise due discretion, and act from right motives. Some distinctions are also plainly marked out between interference in case of misdemeanors, in which class is a riot, unless by reason of the statutes above cited it has acquired the character of felony, and interference in case of felonies. If a felony has been in fact committed, a private person may arrest the offender without having witnessed the offence. But by the common law neither a private individual nor a constable (see now 2 & 3 Vict. c. 47, s. 65, as to the metropolis) is justified in arresting any of the Queen's subjects, unless there be a breach of the peace continuing, or unless he has reasonable ground to believe that a breach of the peace which has been committed will be renewed. (Timothy v. Simpson, 1 C. M. & R. 757, recognized in the House of Lords (Price v. Seeley, 10 Cl. & Fin. 28.) In that last case the defendant was held to be justified in causing the plaintiff to be arrested. Having been turned out of the premises of the defendants when obstructing the building of a wall, and assaulting one of the defendants, he returned again to the premises, and made a great noise and affray therein, and threatened to assault the defendants, and insulted and showed fight to them, and

again obstructed the further erection of the wall. On the other hand, it would not suffice to justify an arrest that the party arrested was in the house of another and refused to go out, and was ready and desirous to commit a breach of the peace. In such case the owner might turn him out, and by force, if necessary, but not give him in charge. (Wheeler v. Whiting, 9 C. & P. 262.) For neither an individual nor a constable would in strict law be justified in arresting merely because a breach of the peace had taken place. He must in such case obtain a warrant. Instances illustrating the requisite averments in setting up the legal defence may be found in the following cases. (Grantv. Moser, 5 M. & G. 123; Baynes v. Brewster, 2 Q. B. 375; Ingle v. Bell, 1 M. & W. 516; Cohen v. Huskisson, 2 M. & W. 477; Webster v. Watts, 17 L. J. 73, Q. B.; Howell v. Jackson, 6 Car. & P. 723; Rex v. Smith, 6 Car. & P. 136; Rex v. Hems, 7 Car. & P. 312.) A familiar instance may be given from the recent disturbances. Any one who had caught one of the rabble in the act of breaking the windows in Pall Mall, would have been justified in seizing him and using any necessary force to prevent his escape; but if, half an hour after he had seen him do it, he had recognized him walking quietly down the street, he would not have been justified in the attempt to seize and give him in charge. Not at common law, because the breach of the peace was over; not under the Malicious Trespass Act or the Metropolitan Police Act, because he was not "found committing" the offence at the time of apprehension. (Simmons v. Millingen, 2 C. B. 524, infra, sect. 2.) Should this species of mischief be repeated, it may be desirable to allow the punishment of whipping to be inflicted, by which it would probably soon be suppressed.

The better plan, therefore, is, in all ordinary cases of misdemeanor, to apply for a warrant; but in public

disturbances it is only for want of timely check in the first instance that the mob succeeds. Curiosity, indolence, or fear, are construed into approval, and the gathered strength soon becomes mischievous and dangerous.

Before concluding this branch of the subject, it will, it is thought, be useful if a short analysis be given of the principal enactments rendering a warrant unnecessary.

2. Where warrant is unnecessary by statute.] By the Vagrant Act, 5 G. 4, c. 83, s. 6, any person may, without a warrant, apprehend any person who shall be found offending against that Act, and take him before a justice, or give him in charge. This, by s. 10, includes any person armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him any instrument, with intent to commit any felonious act. The 11th section includes every person being found in or upon any dwelling-house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose. The offences specified in the 12th section are, every suspected person or reputed thief frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent, with intent to commit felony.

The same summary power is given in respect of persons "found committing" any offence against the 7 & 8 G. 4, c. 30, s. 27, (Malicious Injuries to Property,) but limited to peace-officers, or peace-officers, or "the owner of the property injured, or his servant, or any person authorized by him." It is unnecessary to specify all the different