CHAPTER VIII. DUTIES OF THE MILITARY. THE jealousy which has always been evinced in this country of any approach to military government, was probably the foundation of the erroneous notion in 1780, that soldiers were powerless without the authority of the civil magistrates; and the surprise expressed in 1832, at that part of Lord Chief Justice Tindal's charge which was specially directed to this subject, showed that the error was far from being extinguished. Mr. Justice Holroyd had indeed stated, in Redford v. Birley, (3 Stark. N. R. 101; see also Burdett v. Abbott, 4 Taunt. 401,) that the military (a) were citizens no less than soldiers; and instances occurred in the Luddite disturbances of their acting alone, in accordance with what is unquestionably the law of this country: but never was it so clearly expounded as in the following extract from that charge :— "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 individual. 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 soldier; 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, where arms are necessary, the soldier may do the same. Undoubtedly, the same exercise of (a) This includes, of course, the militia and yeomanry. the discretion, which requires the private subject to act in subordination to and in aid of the magistrate, rather than upon his own authority, before recourse is had to arms, 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." Prudence and regard to public opinion will keep back the military, even more than mere private individuals, from voluntary interference, and the instances are happily very rare of such interference being necessary. But a question occurs, which cannot be passed over in a legal work, although it is one of a most delicate nature, and upon which only broad principles can be laid down. It is the degree of justification the military will have by law for acts done by them, while aiding the civil power. If they are engaged in executing a warrant, then they will be protected in enforcing that which it is their legal duty to enforce, to the same extent as constables. They would be within 24 G. 2 for the purposes of civil actions, and their criminal responsibility will depend upon whether what they did was necessary to execute such warrant, and they are not to decide upon the propriety of its being issued. If called in to aid generally, they must aid and assist "in such commands as the magistrates are by law entitled to impose" (per Holroyd, J. in Redford v. Birley, 3 Stark. N. P. 97). In very few instances would an officer be justified in refusing so to aid, and in hardly any case would the officer or soldier be justified in refusing to obey the orders given by their superior. It is, however, right to state, that there seems to be nothing in the Mutiny Act to free the military man from the responsibility that all persons similarly engaged incur; for although he is bound to obey all "lawful" commands, it is yet expressly enacted, that nothing in the Act shall "extend to exempt any officer or soldier from being proceeded against by the ordinary course of law." (See 9 & 10 Vict. c. 12, s. 81.) Like all other ministers of the law, whether executing warrants or obeying parol orders, which in cases of riots seem to have, under 34 Edw. 3, c. 1, the force of warrants, (see 1 Hawk. c. 65, s. 18,) they are exposed to an indictment or a court-martial for disobedience, or, if death ensues, are liable to be indicted for manslaughter or murder. Neither a military man or a civilian is justified in causing death, merely because he is ordered to do so. Resistance, indeed, must be put down; and those who are engaged in the unlawful acts are not the judges of what degree of force is necessary. It has already been shown, that the most violent means are justifiable when demanded by the occasion; and if any choose to remain as spectators, fancying that because they do not take an active part, they are therefore not participators, they will find the risk they run is very great. They may be thought so, if they should happen to be tried, and are quite certain of being treated as such, by those whose duty it is to restore peace. Here, too, it may be remarked, that the military or constables, being engaged in a lawful purpose, would not collectively be answerable for any misconduct. Not so, the mob. In the one case each must take the consequences of the act of any one, while in the other no person will be answerable for the improper act of one, except that one only. The Riot Act, too, having been read, those continuing the tumult become guilty of felony; and as it is rarely read without reason, and as it expressly provides indemnity for all engaged in putting down the resistance, the same nicety in scanning the degree of violence can hardly be applied. Still, of course, due discretion must be used. The knowledge of these principles will exercise a wholesome influence both over the military and the civilians. Not forgetting their responsibility to the laws, they will honestly and manfully do their duty, quite satisfied that even if the prejudices or angry passions of the people should from accidental circumstances expose them to temporary difficulty, as if death should ensue, and a coroner's inquest should, without reason, return a verdict of murder-that the result will depend not upon that ex parte inquiry, but upon a full examination of the facts, and the application of the law to those facts by the judges of the land, who will do their duty alike uninfluenced by the favour of the crown, or the fear of the multitude (a). - (a) On the interesting question of the liability of military for illegal acts, see Grant v. Gould, 1 H. Bl. 68; Johnston v. Sutton, 1 T. R. 528; Bailey v. Warden, 4 M. & S. 400; Fry's case, in M'Arthur on courts martial; and Redford v. Birley, 3 St. N. P. 76— 128. This last case deserves especial study, from its historical interest, in connection with Peterloo, and from the elaborate judgments. It will be seen, from these and other cases collected in the Law Review, No. 15, pp. 17-62, that unjust treatment under the form of discipline, cruelty and unnecessary severity, an undue assumption of authority not within the scope of military discipline, the infliction of an illegal sentence pronounced by a court martial, want of probable cause in a prosecution before a court martial, are causes of action against a superior officer. In Burnet on the criminal law of Scotland, 71-85, there are many cases in which the question of liability of the military has arisen, and from which he deduces the general rule-that a soldier's privilege, whether acting in the more immediate discharge of his duty as a soldier, or in aid and protection of the civil magistrate, stands higher than that of an ordinary officer of the law; so as a lesser degree of resistance or hazard of being driven from his post, and compelled to abandon his duty, will justify him in using or giving orders to others to use those arms with which he is intrusted, even to the killing such as invade or assail him, or those under his command. This at least, he adds, seems to be established by the later cases of this kind that have occurred. (But see 9 Law Magazine, 66.) CHAPTER IX. DUTIES OF MAGISTRATES. 1. General Duties.] Magistrates, by the very words of their commission, "assigned to keep the peace," have on every occasion of public disturbance duties of the most difficult nature to perform. Activity, courage, and firmness must be governed and directed by the nicest discretion. Neither good feeling nor good intention will free from criminal responsibility if they fail either from fear or ignorance, and yet they ought not to invest every petty excitement or constitutional expression of grievances with the character of a riot, or collect a force out of all proportion to the occasion. It would be useless and somewhat presumptuous to attempt here to discuss these matters at length. They must be decided as the circumstances occur. Previous reflection upon the subject will tend to secure presence of mind when needed; and the fatal effects of remissness or mawkish tenderness on the part either of magistrates or those who ought to support them, are written in characters of blood by the riots in London in 1780, at Birmingham in 1791, and still more recently at Bristol. Some special powers given by statute and some points judicially decided as to the mode of exercising them, will here be briefly stated. They have of course all the powers of individuals; and further, by 34 Edw. 3, c. 1, a single justice may, in |