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stables and even private individuals are justified in using force to disperse an unlawful assembly; R. v. Neale, 9 C. & P. 431. Levying way against the Crown is where there is an armed force seeking to super sede the law, and gain some public object. There must be an insurrection, and a force accompanying it: R. v. Frost, 9 C. & P. 141.
In the Annual Register for 1768, vol. xi. p. 227, there is an account of a trial of a magistrate named Gilham, who was tried for his life for having given orders to the military to fire on the mob during the riots in St. George's Fields, after the Riot Act had been read. He was acquitted. Serjeant Glynn, who was counsel for the prosecution, said at the close of his evidence : “I am not now pressing this gentleman's conviction; I opened the law that where it was absolutely necessary for suppressing a riotous mob, there the magistrate is justified.”
What is the law with regard to a soldier firing upon a crowd and The duty of causing death? There can be no doubt that if the occasion justifies soldiers. the command to fire, he is bound to obey it, and is not liable for the consequences. To disobey it would subject him to severe punishment, perhaps death, by court-martial. But suppose that the occasion does not justify the command-in other words, that the order to fire is improperly given, and unlawful—what then? A soldier is here placed in a most difficult dilemma. On the one hand, it is his military duty to obey the orders of his commanding officer ; on the other, he has by becoming a soldier not ceased to be a citizen, and, is subject to the duties of a civilian. It is clear that he would not be justified in obeying every command of his superior; as, for instance—to put an extreme case--supposing he were ordered to fire upon the Sovereign, or to desert to the enemy, or to commit a rape. There he must instantly recognize the form of a paramount obligation, and see that disobedience is a duty. But suppose that the command is such that, although in the eye of the law illegal, it is not obviously so. In such a case he surely ought to be held harmless for obeying it. Suppose now that he conscientiously believes the order to be illegal, although in fact it is not. If he disobeys it he would be tried and punished by a court-martial, and properly so; for it would be very dangerous to allow a soldier to shelter himself against the charge of disobedience on the plea that he mistakingly believed the order of his commanding officer to be contrary to law. But there is yet a third case. Suppose he disobeys an order which is illegal, but not obviously so, as in the case of a command to fire where there is a riot, but not such violence as to justify the use of military weapons. Here he would only have done that which as a citizen he was bound to do, namely, to abstain from murder; for, as was said by Bayley, J., in R. v. Burdett, 4 B. & Al. 323 : “ The libel in question imports that the troops had killed men unarmed, unresisting, and had disfigured, maimed, cut down, and trampled on women. If that were done, if unresisting men were cut down, whether by troops or not, it is murder, for which the parties are liable to be tried by the law of the country.” But would he have committed an offence against
the Articles of War? Those Articles provide that any officer or soldier who shall disobey the lawful command of his superior officer shall, if an officer, suffer death, or such other punishment as by a general court martial shall be awarded ; and if a soldier, shall suffer death, transportation (now penal servitude), or such other punishment as by a general court martial shall be awarded. It seems, therefore, that a court martial could not find him guilty of disobedience if the command was not lawful. Perhaps, upon the whole, the right conclusion is this : a soldier may disobey an unlawful command, but he is justified in obeying all orders of his commanding officer, unless they are obviously, and in a manner patent to common sense, illegal. The habit of discipline and obedience in a soldier is, I believe, more essential to the wellbeing of the State, than the possibility of his now and then executing an illegal order is injurious to it. In Keighley v. Bell, 4 Fost. & Fin. 790, Willes, J., said : “I hope I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war-at all events as regards enemies or foreigners—and, I should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe that the better opinion is that an officer or soldier, acting under the orders of his superior, not being necessarily or manifestly illegal, would be justified by his orders."
Under what circumstances is a sentry justified in firing upon persons approaching him ? It seems to me that this is a question of discretion, in which much must be left to the judgment of the soldier. If he fires wantonly and unnecessarily, and thereby takes away life, he is guilty of manslaughter, if not of murder. If, on the other hand, he allows himself to be assaulted and disarmed, or the property which he is stationed to defend to be plundered, he is guilty of a grave military offence, for which he might suffer death. But between these two extremes there is a wide interval, in which his conduct must be regulated by circumstances. If a sentry is attacked or threatened by an armed force, he certainly may use his firearms, if necessary to repel the attack and prevent the commission of crime. On the approach of an unarmed body of men in a hostile attitude, more caution would be requisite; and it would be, I conceive, necessary to give the most distinct challenge and warning before firing, and then only provided the party continue to advance, and could not otherwise be prevented from carrying out his or their unlawful design. That an attempt to deprive a sentry of his arms might be repelled by force, even to the extent of taking away life, provided the force cannot be otherwise successfully resisted, is, I think, clear from the circumstance that a sentry who improperly allows himself to be disarmed, is by the Articles of War punishable by death; so that in defending his arms he is in effect defending his own life.
ON EXTRA-TERRITORIAL JURISDICTION.
(1.) REPORT by SIR JAMES MARRIOTT, King's Advocate, on the reference of the Letter of Sir JAMES Wright, his
Majesty's Minister at Venice, by the EARL OF SHELBURNE (1). MY LORD,-In humble obedience to his Majesty's pleasure, signified to me by your Lordship's letter of the 25th instant, referring to me an extract of a letter from Sir James Wright, and the case of felony, or murder," which may eventually be committed by his Majesty's subjects on board English ships, or in the house or privileged circuit of his Majesty's accredited minister,” for me to consider, in point of law, what directions are proper to be given thereupon, I have the honour to report to your Lordship, that in the case of murders or felonies committed upon the high seas, the parties charged therewith are proper objects of the jurisdiction of the High Court of Admiralty in England, and are to be sent home, to be delivered up to the proper magistrate here, and take their trials accordingly. But that when murders or felonies are committed in any port, river, creek, or haven of the territory of any foreign Power, those crimes do then fall under that particular local and territorial jurisdiction, which jurisdiction is always understood to reach as far as the power of protection reaches—that is to say, within the command of gunshot from the shore, for the power of punishment is always equal to and coincident with and inseparable from the power of protection.
With respect to such crimes or violences as may be committed within the house of a public minister, if he can give an asylum to foreigners (a privilege of which I doubt the justice and reciprocal utility, though some have asserted it), he might à fortiori protect persons of his own suite against a foreign jurisdiction, but certainly
(1) From a M.S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate. No date.
he cannot execute himself any jurisdiction, touching life and limb, upon them, because he has no such commission, and he is under a necessity, from circumstances, to deliver them up of his own movement to be tried by the jurisdiction of the country in which he and they are resident, because otherwise the criminal would go unpunished, inasmuch as the criminal, being sent home, could not, by the common law of this land, be tried for crimes committed out of the realm, and which cannot be laid in the indictment to be done against the peace of our Sovereign Lord the King, his Crown and dignity.
There is, indeed, in our constitution a jurisdiction of the constable and marshal for things done out of the realm, but it appertains only to matters touching war and arms, and appeals from the provost-marshal or other military jurisdiction in the King's armies in a foreign territory.
With respect to murders, when persons die in a foreign country of a wound received within this realm, or die in this realm of a wound received in a foreign country, in either alternative the party giving the wound, and his accessory or accessories, by 2 Geo. 2, c. 21, must be tried in England, the statute considering the cause and effect as one continuity of action without interval, in order to found a domestic jurisdiction and to reach the crime.
To conclude, the law of nations does not delegate to any accredited minister, as Sir James Wright supposes, a full judicial power to determine, without appeal, upon all acts of violence and theft committed within the circle of his supposed district, by which only the walls of his own house can possibly be meant, which, by the law of nations, protects its inhabitants from insult, without having in it their definitive tribunal.
(2.) Joint OPINION of the Attorney and Solicitor General, Sir Philip YORKE and SIR CLEMENT WEARG, on a trial
for Murder committed at Sea. 1725. Extract of a letter from Mr. Worsley, Governor of Barbadoes, to
the Lords Commissioners for Trade and Plantations, dated the 24th of January, 1724-5:
“ I have the honour to present to your Lordships an account of an accident that has lately happened here. On the 4th of December last, the St. Christopher's galley, James Newth, commander, sailed out of this port, and the forts fired some random shot at her to bring her to, in that she had not put up the proper signal that was given her, or any other, which is to show that she had cleared out of all the offices and had liberty to depart. The master, instead of bringing to, hoisted more sail, whence a matross of James's Fort, suspecting she had done something irregular (as they often do in this part of the world, one about twelve months ago attempting to carry away a custom-house officer), fired a shot into her when she was about two miles off, which happened, unfortunately, to kill the mate, and wounded another man. The vessel immediately returned into port, and as soon as the master informed me of it, I inquired into the fact, upon which I found she had not put up her signal, the master complaining it was not a proper signal, being a tarpauling hoisted upon the flagstaff; and though I found such signals had been sometimes given and had been put up, nevertheless, as 1 thought it a very improper one, that there might be no such precedents for the future, I suspended the captain of the fort for some time. However, if the master of the vessel had not liked the signal, he ought not to have gone under sail till he had got another, and ought to have brought to upon the fort’s firing. The difficulty at present I lie under, is to know whether, and where, the matross that fired the shot from James's Fort is to be tried, or what court can take cognizance of it. The person that was killed by a gun from the shore was upon the high seas two miles off of the shore, where, I apprehend, my jurisdiction does not extend, and his Majesty's Attorney General here is of the same opinion.”
Opinion.—We are of opinion that the matross who fired the shot cannot be tried for the death of the mate in any court of common law, but that he ought to be tried for the same either in the Court of Admiralty at Barbadoes, or by special commission under statute of 11 & 12 Will. 3, c. 7, which is now the most known and usual method of proceeding in cases of felonies done upon the sea in these parts.
P. YORKE. April 17, 1725.