1

It is stated by Hume, that the only competent court for the trial of the deforcement of any of the King's officers, is either the Court of Session or Justiciary. It does not very distinctly appear on what ground the Sheriff, in virtue of his general commission to keep the King's peace, is not competent to try for this as well as any other offence not excluded by statute or custom ; but till the reverse is established by a decision of the Sapreme Court, it is safest to follow this course; and, where it is not thought advisable to bring such deforcements to the Justiciary Court, to try these before the Sheriff for assault, aggravated by the intention to deforce, to which there seems no doubt that that judge is competent.

2

3

In prosecutions at the instance of the Lord Advocate, the messenger and his assistants, if he has any, are not only competent but necessary witnesses. It is no sufficient objection to an assistant giving his testimony, in a prosecution by the messenger, that he is a near relation of the messenger. Hume lays it down,, that the party, who is the employer of the messenger, cannot give his evidence even in the Lord Advocate's process, unless he discharge his interest in the escheat; but this is not supported by any authority, and it seems contrary to the analogy of law, in the case of witnesses whose subscriptions have been forged, or goods stolen; but, without doubt, the existence of that interest should make the jury cautious in receiving his testimony.

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THE general term Mobbing and Rioting includes all those convocations of the lieges for violent and unlawful purposes, which are attended with injury to attended with injury to the persons or property of the lieges, or terror and alarm to the neighbourhood in which it takes place. The two phrases are usually placed together; but nevertheless they have distinct meanings, and are some

1 Hume, i. 399.— Ibid.3 Sword v. Franks, July 13. 1669.—1 Hume, i. 400.

times used separately in legal language; the word Mobbing being peculiarly applicable to the unlawful assemblage and vio lence of a number of persons, and that of Rioting to the outra geous behaviour of a single individual.

1. It is indispensable that a considerable host or num ber of persons shall have been assembled for some unlawful purpose.

It is in the appearance of power, as well as in the disposition to execute their unlawful purposes, of their own will and authority, and without regard to legal authority, that the crime of mobbing chiefly consists. Of course it is indispensable that a considerable number of persons shall have been assembled such a number as threatens the peace of the neighbourhood, and is calculated to excite alarm and terror among the lieges. No specific rule can be laid down as to the number of persons who must be assembled together in order to constitute a mob; and truly this is a matter which is better left to be decided by the circumstances of each particular case, and the degree of excess to which the meeting have proceeded; for, without doubt, the higher these are, the less number will be sufficient to bring the convocation under the description of a mob; and, on the other hand, inferior outrages may raise it to that character, if they proceed from so great a number as to be on that account the subjects of terror and alarm.1. In many cases assemblages of seventy, fifty, and forty persons have been libelled on as amounting to a mob, and the indictments sustained without hesitation by the Court. The Riot act fixes the number at twelve or more, a principle which seems decisive of the law on this subject. In England it is held that in every riot there must be some such circumstances either of force or violence, or of an apparent tendency thereto, as is apt to strike terror into the people; but it is not necessary that actual violence should have been committed to constitute the crime.2

2. The assembly must be to the fear of the lieges, and the disturbance of the public peace; and it may be com mitted even in the execution of a legal object, if done in a violent and outrageous way.

1 Hume i. 416.-2 Hawk. i. c. 65 § 5; and Camp. ii. 369.

It does not affix the character of mobbing upon an assembly, that it is one which is intended for a wrong or unlawful purpose, even such an one as is forbidden under pain of death, if the business is conducted regularly and quietly, and no preparation or intention of commotion exists1. Even the assembling to compass the king's death, which is an overt act of high treason, for which the offenders may be arrested on the spot, is not an act of mobbing, so as it is done secretly, and after the manner of a conspiracy rather than a tumultuous assembly.2 Of course, assemblages for purposes nowise illegal, though sometimes contrary to morals, as foot-ball, racing, cock-fighting, or the like, where the purposes of the meeting are not public disturbances, or the accomplishment of any violent and illegal objects, do not fall under this offence.3

On the other hand, acts of mobbing may be committed by the lieges, in the prosecution even of a legal object, if it be set about after a tumultuous and disorderly manner. Thus a sheriff, a justice of the peace, and, in some cases of extremity, a messenger, constable, or revenue officer, has a right to command the assistance of the neighbourhood; but if, instead of employing only the requisite and necessary degree of force, the assembly shall proceed to acts of unnecessary violence or outrage, they are undoubtedly amenable to the law of mobbing. Thus in the case of George Robertson, sheriff-substitute, David Beatson, messenger, and a number of gentlemen of the county of Ross, 26th February 1722, a libel was sustained against these parties for acts of violence and outrage committed by them, in the execution of a caption against certain councillors of the burgh of Dingwall; and the same view was taken by the Court of Session, in the case of a great number of persons who, in November 1790, under authority of a decree of that Court for removing a dam-dike on the river Leven, proceeded to acts of unnecessary violence.1

Farther, it is not to be supposed that acts of mobbing can be committed with impunity, even in the vindication of the supposed rights of the lieges, and which ultimately, when investigated by the proper tribunal, turn out to be well founded. If, instead of presenting a bill of suspension, or adopting other legal measures for preventing the encroachment, the injured par

1 Hume i. 417.-2 Ibid.—3 Ibid. Ibid.

ties shall proceed to take the law into their own hand, with circumstances of tumult and violence, their offence will amount tò mobbing, and the alleged illegality of the proceedings against which their violence was directed, will furnish no defence. Accordingly, in the case of Alexander Macphie and others, Glasgow, autumn 1823, the pannels were indicted for riotously assembling, and in a tumultuous manner pulling down certain walls which had been erected across a foot-path at or near the eastern and western boundaries of Mr Harvie's estate, at Glenthorn, on the river Clyde, and which obstructed a foot-path which had long been frequented by the public along the banks of the river. It was objected to the libel, that it did not aver that the walls pulled down were Mr Harvie's property: but this was repelled, on the ground that, whether they were on his property or not, the violent and tumultuous proceedings libelled amounted to the crime of mobbing; and that, if the lieges had a right to the walk, they should proceed to establish their right by the proper proceedings in the civil courts, instead of violently taking the law into their own hands. They were convicted; and, in consideration of good character, and of their having proceeded on a mistaken idea of right, sentenced only to six months' imprisonment. Afterwards, in a trial in the Jury Court, affirmed in the House of Lords, the question of right was determined in favour of the inhabitants, and the obnoxious bulwarks ordered to be removed.1 In like manner, in the case of Hugh Macdonald and others, June 9. 1823, it appeared that the pannels, who were inhabitants of the parish of Croy, near Inverness, conceived that their legal rights, as parishioners, had been invaded by the appointment of a minister by the patron of the parish; and, in order to get quit of him, they violently resisted his entrance into the church on the day on which he had been appointed by the presbytery to officiate. For this offence they were sentenced to the mitigated punishment of two months' imprisonment each, in consideration of their good character, and of their having proceeded on a mistaken idea of right.2 In England it is held, that, if there be violence and tumult, it is immaterial whether the act intended to be done be of itself legal or not; for the law will not suffer persons to seek redress of their private grievances by such dangerous disturbances of

1 Unreported.-' Unreported.

the public peace; but the legality of the object is a good ground for mitigation of punishment. If three or more persons, in a violent and tumultuous manner, join together in removing an illegal nuisance, they are as much guilty of a riot as if the act intended by them were unlawful.2.

3. The assembly must not only have proceeded to acts of violence, but they must have done so in pursuance of a common design, either previously formed or taken up at the moment in pursuance of a common feeling.

J

It is in the convocation of a number of persons for some common purpose that the essence of mobbing consists. And it is in this particular that it differs from a common or casual affray, which, although it may be as numerous or violent, is not properly a mob if no common object actuated its members. But, on the other hand, it is not indispensable that this common object be formed, though usually it is so, previous to the time of meeting; it is sufficient if a sudden and tumultuous consent is given at the moment to some common proceeding, for the attainment of a common object. And wherever this sort of tacit confederacy is evident in the behaviour and proceedings of the multitude who direct their efforts to one common end, the crime will amount to mobbing, though the idea was suggested only at the moment by some occurrence which could not have been foreseen. daa

4

In England the law is the same. There must be a common object, but it may be taken up at the moment, and though the parties assemble in the first instance for an innocent purpose, they may be afterwards guilty of a riot, if they suddenly take up the design of tumultuous proceedings.5

4. The common object in mobbing must be some local or private matter, and not the attainment of any general or national object, in which case it merges in treason.

When mobbing is carried on on a great scale it is very nearly allied to treason, and the same offence may frequently be prosecuted either under that formidable name, or under the lower

1 Hawkins, c. 65, § 7.-2 Mod. xii. 648; Russell, i. 249.-3 Hume, i. 418. 4 Ibid. Hawkins, i. c. 65. § 3; Russell, i. 250.

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