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are still treasonable, a large proportion are now prosecuted under another character.
The statute 25 Edward IV. contains those definitions of treason which ar authorities at the present day. The words of that statute within the meaning of which a riot may be brought are the following:-"If a man do levy war against ou lord the king in his realm;" or "When a man doth compass or imagine the death of our lord the king, or our lady his queen, or of their eldest son and heir." The constructive treasons which were founded upon these words, during the more arbitrary periods of our history, were so numerous, that if they had retained the sanction of the law, they would have included a large proportion of the riots which have occurred during the present century. The law was happily altered in this particular by the 1st Mary, statute 12, which enacted, "That no act, deed, or offence being by act of parliament made treason, petit treason, or misprision of treason, by words, writing, cyphering, deeds, or otherwise whatsoever, shall be taken, had, deemed, or adjudged to be high treason, petit treason, or misprision of treason, but only such as be declared and expressed to be treason, petit treason, or misprision of treason in or by the act of parliament of 25th Edward III., touching treason or the declaration of treason, and none other, nor that any pains of death, penalties or forfeitures in any wise ensue, or be to any offender or offenders, for doing or committing any treason, petit treason, or misprision of treason, other than such as be in the said act ordained and provided, any statute made before or after the said 25th year of Edward the III., or any declaration or matter to the contrary notwithstanding." By this act, then, treasons have been reduced to the old standard of 25 Edward III.: yet even this class of offences is still so comprehensive as to include a large number of cases which are in these days treated as common felonies.
To show the treasonable character attaching to many of those riots which have recently taken place, we may quote the following case which occurred in 1675. "A great number of weavers in and about London, being offended at the engine loom, (which are instruments that have been used these sixty years,) because thereby one man can do as much in a day as nearly twenty men without them, and by consequence can afford his ribbands at a much cheaper rate; after attempts in Parliament and elsewhere to suppress them, did agree among themselves to rise and go from house to house to take and destroy the engine looms; in pursuance of which they did, on the 9th, 10th, and 11th of this instant August, assemble themselves in great numbers, at some places to a hundred, at others to four hundred, and at others, particularly at Stratford-Bow, to about fifteen hundred. They did in a most violent manner break open the houses of many of the king's subjects, in which such engine looms were, or were by them suspected to be; they took away the engines, and
making great fires, burnt the saine, and not only the looms, but in many places the ribbands made thereby, and several other goods of the persons whose houses they broke open; this they did, not in one place only, but in several places and counties-Middlesex, London, Essex, Kent, and Surrey, in the last of which, viz. at Southwark, they stormed the house of one Thomas Bybby, and though they were resisted, and one of them killed and another wounded, yet at last they forced their way in, took away his looms and burnt them; the value of the damage they did is computed at several thousand pounds." We might almost fancy that, in quoting this history, we were writing an account of those formidable riots which occurred in the year 1830; and we feel convinced that not merely the rioters of that year, but also the public at large, would have been surprised to learn that the offence bordered upon high treason, and that a case so precisely similar had been declared treason by five of our judges.* The criminal acts drawn up under Sir Robert Peel's superintendence declare offences of this kind, and many others, which would have formerly been punished as treasons, to be felonies; but they do not abrogate the law previously existing upon treasons; they are cumulative, and leave it to the discretion of the public prosecutor whether he shall not indict the offenders upon a charge of high treason. One of the prisoners at the Bristol trials endeavoured to turn the existence of the ancient law to his advantage. Being indicted for the commission of a felony in attacking the public prison, he attempted to put in as a plea that the offence was treason and to be punished as such, because he had openly declared during the attack that he would destroy all the prisons in the land. The judges overruled the objection, not however denying his offence to be treasonable, but asserting, that although it was treason, it might be still a felony, and prosecuted as such under the provisions of Sir R. Peel's act.†
Among the riots, then, which a soldier may be called upon to suppress, some may be misdemeanors, some felonious, others may be felonious and treasonable, and others may distinctly amount to high treason, and ought
Hale's Pleas of the Crown, vol. i. p. 142.
+ Morning Chronicle, January 5th.-" Mr Palmer, on behalf of Clarke, took an objection to the indictment, contending that the evidence went to show that he had declared he would set fire to all the gaols in the kingdom, and that he was thereby guilty of high treason, in which the felony was merged. The learned counsel, therefore, submitted that the prisoner must be acquitted. The learned judges, (Tindal, Taunton, and Alderson,) however, in delivering judgment, said that the objection was not tenable. They had yet to learn that if a person who might be charged with high treason had done an act amounting to murder, arson, or other offences which might be made acts of that treason, that therefore, he was to be acquitted as such, and the crown driven to prefer an indictment for high treason; but in this case, the declarations of the prisoner were so far from the time of the acts committed, when it did not appear that he was in company of those who had been concerned with him in committing the acts themselves, that it could not be said that he was guilty of high treason."
to be treated as such. The duty incumbent upon a private person for the suppression of treason is not treated in any of our law-books distinctly from the duty of suppressing felony. Lord Hale and Serjeant Hawkins* treat of both together; and having commenced the discussion upon the arrests of "traitors and felons," subsequently employ only the term of "felons." Indeed,† "in ancient time, every treason was comprehended in the name of felony ;" and lord Hale talks of "treasons and other felonies;" so that in every case of treason, a private person may safely act as in a case of aggravated felony. In many instances, the nature of the act, such as an attack upon the king's person, or upon his courts of justice, or his fortresses or troops, will leave no doubt upon the mind of any man as to the course to be pursued; and it may be observed generally, that the aggravation of the offence will prove to him at once, that, for the purpose of checking it, the use of the most violent means will be perfectly justifiable. The same principle of law which applies to a soldier in respect of felony, will also apply to him in respect of treason. In the eye of the civil law, he acts as a private person, bound by the same duties, and subject to the same responsibility. In respect of military law, he is still bound to obey the legal commands of his officer. If no officer is present, every interference to suppress treason is legal ; an officer is present, every command issued for that purpose will be legal; if a magistrate is present, every command issued by him should be obeyed by the officer and transmitted to the soldier, and both one and the other are equally bound to obey it.
Such is the state of the law under which is to be decided, on each successive riot that occurs, the policy of having recourse to military aid. The magistrate must remember that the responsibility for consequences is not confined to himself alone; that an improper order, on his part, may subject to capital proceedings, not merely himself, but also those persons, whether civil or military, who act under his directions; that while private individuals are to consider only their duties as private citizens, the soldier is bound by military as well as civil law; and that however harmonious the one law may be with the other, there may be moments of difficulty, in which the soldier may find himself at a loss between the several obligations which they create. Perhaps the soldier may feel sure that the occasion does not justify the use of fire-arms, even after the order to fire has been given; or, on the other hand, he may consider his own life, or that of others about him, in such jeopardy as to require an immediate attack upon the mob, although he has received orders to remain inactive. In either
* Hale's Pleas of the Crown, vol. ii. p. 72. Hawkins' Pleas of the Crown, vol. ii. p. 114.
+ Co. 3, Inst. 15.
case, he may be uncertain whether his own discretion, or the commands of his officer should be obeyed; whether he should hazard the decision of a civil, or that of a military court: and unless his services are indispensable to the maintenance of public peace, he ought not to be exposed by the magistrate to these painful and difficult alternatives.
At the same time, when matters come to extremities when the civil power is unable to enforce the law, there is no body in this country so effective for the end in view as the regular army. In many instances, soldiers of the militias are personally acquainted with persons in the mob; they and their officers, as well as the yeomen and their officers, often have as individuals a pecuniary or some other interest in the suppression of disorder. Thus they will be considered as taking part for their own private advantage, and not for the mere promotion of peace. The subjects on which riots have generally occurred, the amount of wages, the price of food, or the support of peculiar political opinions, are such as frequently separate the farmer from the labourer, the richer from the poorer classes, the yeoman from the multitude against which he is required to act. The consequence is, that the yeomen is suspected of taking arms, not for the mere purpose of suppressing riot and protecting himself and his property, as well as his fellow subjects and their property, from the violence of intemperate men, but in order to promote his own political views, to resist claims which the multitude believe to be just, and to settle civil controversies by an appeal to the sword. Can such a motive, widely circulated by some mischievous and artful ringleader, fail to raise a general unwillingness to concede? or to excite amongst the rioters a resolution to imitate the bad example which they fancy that they perceive in the conduct of the executive power-i. e. to vindicate by a similar recourse to arms, the opinions and claims which they are assembled to promote? We might say much of the evil consequences which are felt after peace has been re-established, of the discordance between the several ranks of society, of the heartburnings and anger and indignation with which the peasantry regard the farmer, and the artisans their master manufacturer, while they harbour the sorrowful recollection of some friend or associate who fell a victim in the struggle, and cherish a determination to take the first opportunity of vengeance. From these and many other drawbacks, which attach to the militia and yeomanry, the regular soldier is wholly exempt. Very probably he marches into the neighbourhood of the scene of action but a few days before the event occurs, and he leaves it immediately afterwards. He has no friends amongst the multitude, no interest in the circumstances out of which the disorder arises he is the mere agent of the law, and cannot be suspected of any other desire or intention than to perform his duty as a soldier, and in obedience to the commands which he receives to overcome the enemies of order. His interference is humane, because the multi
tude know the impossibility of resistance, and retire from the struggle: it is effective, because his discipline, confidence in his comrades, and acquaintance with the use of arms, insure to him an easy victory. Thus it generally happens that life is saved, while the law is enforced.
It is obviously desirable that the people should learn to regard the executors of the law as altogether distinct from the law itself, to consider their actions as altogether mechanical and independent of the merits or demerits of the law, and in times of riot to regard them as solely endeavouring to re-establish order, without any reference to the cause from which the disturbance arose. How this notion can gain ground, if yeomanry, or militia, or any persons principally interested in the causes of disturbance, are themselves to repress it, we are at a loss to conceive.
The superiority of the regular army over yeomanry and militia for the suppression of riot, has been long experienced in Ireland. In that country party spirit is inflamed to the highest pitch, and its bitter fruits are too plainly perceived in the distrust and personal hostility which divide all ranks of society. The yeomanry are accused (whether justly or unjustly is little to our present purpose) of partiality, violent party feelings, and an opposition to the religion of the vast bulk of the people. They constantly encounter a vigorous resistance, and their conduct is invariably misrepresented. On the other hand, the soldiers, although performing the same duties and enforcing the same laws, are generally respected, are even popular, are seldom obliged to draw the sword, but compel the restoration of order by the mere apprehension of their force.
Having explained the law as to the employment of soldiers in maintaining the public peace, we cannot help touching upon the idle complaints which have been not unfrequently made, that such an employment of them is unconstitutional, or contrary to the liberties and privileges of the subject. As we have shown that the law under which they act is consistent with the other laws by which the whole community are bound, and that in reality they are authorized to act by precisely the same law which authorizes all private individuals, we need not detain our readers by proving the complaints to be unfounded, but will merely allude to some of the causes to which the mistake may be attributed. In almost all nations, and at different periods of our history in England, the soldiers have been the agents of despotic power,-it is therefore assumed that they will again act in the same capacity: they have sometimes been employed to restrain the constitutional privilege of meeting and petitioning,-a recurrence of the same conduct is therefore anticipated. Again, they have been required to enforce obnoxious laws, laws perhaps in themselves of an oppressive character,—and the nature of the law has been confused with the character of those who carry it into execution. But the badness of a law supplies no charge against the agent who brings it faithfully into operation; and