IG. 1. st. 2. c.5. by this act to make the said proclamation, shall, among the said rioters, or as near to them as he can safely come, with a loud voice, command, or cause to be commanded, silence to be while proclamation is making, and after that, shall openly and with loud voice make or cause to be made proclamation in these words, or like in effect:

tion.

The proclama OUR sovereign lord the king chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of king George, for preventing tumults and riotous assemblies. God save the King. (a) "And every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head officer aforesaid, within the limits of their respective jurisdictions, are hereby authorised, empowered, and required, on notice or knowledge of any such unlawful, riotous, and tumultuous assembly, to resort to the place where such unlawful, riotous, and tumultuous assembly shall be, of persons to the number of twelve or more, and there to make or cause to be made proclamation in manner aforesaid."

Justices, &c. to resort to the

place.

Persons so assembled, and not dispersing within an hour, to be seized.

And if they

make resistance, the persons kill ing them, &c. to be indemnified.

3. "And if such persons so unlawfully, riotously, and tumul tuously assembled, or twelve or more of them, after proclamation made in manner aforesaid, shall continue together, and not disperse themselves within one hour, that then it shall and may be lawful to and for every justice of the peace, sheriff, or under-sheriff of the county where such assembly shall be, and also to and for every high or petty constable, and other peace officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, and other head officer, high or petty constable, and other peace officer of any city or town corporate where such assembly shall be, and to and for such other person and persons as shall be commanded to be assisting unto any such justice of the peace, sheriff, or under-sheriff, mayor, bailiff, or other head officer aforesaid, (who are hereby authorised and empowered to command all H. M.'s subjects of age and ability to be assisting to them therein,) to seize and apprehend, and they are hereby required to seize and apprehend such persons so unlawfully, riotously, and tumultuously continuing together after proclamation made, as aforesaid, and forthwith to carry the persons so apprehended before one or more of H. M.'s justices of the peace of the county or place where such person shall be so apprehended, in order to their being proceeded against for such their offences according to law; and if the persons so unlawfully, riotously, and tumultuously assembled, or any of them, shall happen to be killed, maimed, or hurt, in the dispersing, seizing, or apprehending, or endeavouring to disperse, seize, or apprehend them, by reason of their resisting the persons so dispersing, seizing, or apprehending, or endeavouring to disperse, seize, or apprehend them, that then every such justice of the peace, sheriff, under-sheriff, mayor, bailiff, head officer, high or petty constable, or other peace officer, and all and singular persons, being aiding or assisting to them, or any of them, shall be free, discharged, and indemnified, as well against the king's majesty, his heirs and successors, as against all and every

(a) See R. v. Child and R. v. Woolcock and another, post, 748.

other person and persons of, for, or concerning the killing, maim- 1 G. 1. st. 2. c.5. ing, or hurting of any such person or persons so unlawfully, riotously, and tumultuously assembled, that shall happen to be so killed, maimed, or hurt, as aforesaid."

without benefit

§ 5. provides, "That if any person or persons do or shall, Opposing, &c. with force and arms, wilfully and knowingly oppose, obstruct, or the making in any manner wilfully and knowingly lett, hinder, or hurt any such proclamaperson or persons that shall begin to proclaim or go to proclaim, tion, felony according to the proclamation hereby directed to be made, of clergy. whereby such proclamation shall not be made, that then every such opposing, obstructing, letting, hindering, or hurting such person or persons, so beginning or going to make such proclamation as aforesaid, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy; and that also every such person or persons so being unlawfully, And persons so riotously, and tumultuously assembled, to the number of twelve assembled, if as aforesaid, or more, to whom proclamation should or ought to the proclamahave been made if the same had not been hindered, as aforesaid, tion be hindershall likewise, in case they or any of them, to the number of ed, shall nevertwelve or more, shall continue together, and not disperse themselves within one hour after such lett or hinderance so made, having knowledge of such lett or hinderance so made, shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy."

§ 7. enacts, "That this act shall be openly read at every quarter sessions, and at every leet or law day."

§ 8. provides, "That no person or persons shall be prosecuted by virtue of this act, for any offence or offences committed contrary to the same, unless such prosecution be commenced within twelve months after the offence committed."

theless suffer as felons.

This act to be

read at the

quarter ses

sions, &c. Prosecution within twelve months.

Sheriff, &c. in

Scotland to have the same power as justices, &c. have in England.

Punishment of

persons offend

§ 9. enacts, "That the sheriffs and their deputies, stewards and their deputies, bailies of regalities and their deputies, magis trates of royal boroughs, and all other inferior judges and magistrates, and also all high and petty constables, or other peace officers, of any county, stewartry, city, or town, within that part of Great Britain called Scotland, shall have the same powers and authority for putting this present act in execution within Scotland, as the justices of the peace and other magistrates aforesaid respectively have by virtue of this act, within and for the other parts of this kingdom; and that all and every person and persons who shall at any time be convicted of any of the offences aforementioned, within that part of Great Britain called Scotland, ing in Scotland. shall for every such offence incur and suffer the pain of death, and confiscation of moveables; and also that all prosecutions for repairing the damages of any church or chapel, or any building for religious worship, or any dwelling-house, barn, stable, or outhouse, which shall be demolished or pulled down, in whole or in part, within Scotland, by any persons unlawfully, riotously, or tumultuously assembled, shall and may be recovered by summar (a) action, at the instance of the party aggrieved, his or her heirs or executors, against the county, stewartry, city, or borough respectively, where such disorders shall happen, the magistrates being summoned in the ordinary form, and the several counties and stewartries called by edictal citation at the market-cross of the

Damages of any church, &c. pulled down, &c. in Scotland, covered, and of whom.

how to be re

(a) Sic.

To what places in Scotland this

1 G. 1. st. 2. c. 5. head borough of such county or stewartry respectively, and that in general, without mentioning their names and designations." 10. provides, "That this act shall extend to all places for religious worship in that part of G. B. called Scotland, which are tolerated by law, and where H. M. king George, the prince and princess of Wales, and their issue, are prayed for in express

act shall extend.

Indictment on 1 G. 1. need not aver in terrorem populi.

In reading the proclamation, it is necessary to to add "God save the King" at the conclusion.

Verbal variance between the proclamation made, and the proclamation stated, fatal. Time counts from the first reading. What is a riot ous assembly to bring the case

within the stat. 1 G. 1.

Charge against a magistrate for neglect of duty

in case of riot.

words."

Prisoner was indicted with others on 1 G. 1. st. 2. c. 5., for being riotously assembled, and for remaining together for an hour and more after proclamation had been made by a justice of the peace, pursuant to the statute. It was objected that the indictment was bad, because it did not charge the riot to have been in terrorem populi; but Patteson J. held it was sufficient, as it pursued the words of the act on which it was framed, and that there was a distinction between an indictment for a riot, and an indictment for keeping together after being riotously assembled. Prisoner was convicted. Gloster Sum. Assizes, 1831, R. v. James, 5 Carr. & P.

153.

In an indictment on the same statute it appeared on the trial, which took place on a special commission, that the magistrate who read the proclamation from the Riot Act omitted to read the words "God save the King" at the conclusion. Vaughan B. and Alderson J. held, that on account of this omission the charge could not be supported, and an acquittal was directed. Winchester Special Commission, Dec. 1830, R. v. Child and others, 4 Carr. & P. 442.

On the trial of a similar indictment it appeared, that the proclamation as read from a book which was produced, differed from the proclamation stated in the first count of the indictment, by containing the additional words" of the reign of:" this was held to be a fatal variance. It was further held, with reference to other counts, that where the proclamation was read more than once, the hour was to be computed from the time of the first reading. It was stated in defence that it was not a riot, and that it was at most an unlawful assembly only; but per Patteson J., if there was such an assembly that there would have been a riot if the parties had carried their purpose into effect, it would be within the act. Carmarthen Spring Assizes, 1833, R. v. Woolcock and another, 5 Carr. & P. 516.

In an information filed against defendant, who was Lord Mayor of London at the time of the Riots in 1780, it was charged in several counts that he, knowing and being present when acts of riot were committed, wilfully and obstinately refused and omitted to read the Riot Act; and in a subsequent count it was charged that he unlawfully and wilfully neglected and refused to apprehend the rioters, or to use means for suppressing the riot, or to execute the powers vested in him as justice of the peace in that behalf. It appeared on the trial that the defendant was apprised that a riot was going on in Moorfields, and that he was present there when a Roman Catholic Chapel was in the act of being destroyed; that though a party of soldiers had been sent from the Tower, he neither read the Riot Act, nor used effectual means for suppressing the riot, or apprehending the offenders. Ld. Mansfield C. J. told the jury, that it was clear that justices of the peace, who were invested with great powers for quelling riots, might call

Personal fear alone, no ex

upon the military, who were subjects, and might act as such, for Power to call their assistance; but that this should be done with great caution; in the military. he stated that it was not charged that defendant connived at the riots, but that he had neglected his duty in not making use of the power with which he was invested, and which prima facie it was his duty to have exercised; that his forbearing to do so from personal apprehension was no defence, but that the question was, whether under the circumstances he did all that could have been required of a man of ordinary firmness. Defendant was convicted. Sittings, March 1781, R. v. Kennett, 5 Carr. & P. 282. n. An information having been filed against the mayor of Bristol, for not doing his duty in suppressing the riots that took place there in October 1831. on a trial at bar the following principles and points were laid down and decided: :

It is the duty of a magistrate in case of riots to do all that he knows to be in his power to suppress them, and that can be expected from a man of honesty and of ordinary prudence, firmness, and activity, both by using those means which the law requires to assemble a sufficient force to prevent the mischief, and also by making such use of the force so obtained, and also of his own personal exertions as may reasonably be expected from a firm and honest man. 3 B. & Ad. 957. Nor can he excuse himself on the mere ground of honest intention. Ibid. Nor will it shelter him, if he acted incorrectly in point of law, that he followed the best legal and military advice he could get, though it would be a cir. cumstance in his favour. Ib.958.

But it is no part of his duty to head the special constables, or to marshal and array them, as this more properly belongs to the chief or head constables. Ib. 958, 959.

It is the general duty of justices of the peace, arising from the nature of their office, to restrain rioters, and, if necessary, to pursue, arrest, and take them; and for this purpose they may call on the king's subjects to aid them; and the king's subjects are bound to be assistant to them in suppressing the riot, when reasonably warned. Ib.960.

It was held by a majority of the court, that a magistrate is not responsible for not calling out special constables under 1 & 2 W. 4. c. 41., unless some person has come before him, pursuant to that act, requiring him so to do. Ib. 959. Nor will he be chargeable with not calling out the posse comitatus, provided he has given due notice to the king's subjects to come to his assistance. Ib. 962, 3. If a magistrate calls upon the military to act in suppressing a riot, he is not bound to go with them in person; it is enough if he gives them authority. The defendant was acquitted. R. v. Pinney, 3 B. & Ad. 947.

V. How by Two Justices.

By stat. 13 H. 4. c. 7. § 1., If any riot, assembly, or rout of people against the law be made, the justices, three or two of them at the least, and the sheriff, or under-sheriff, shall come with the power of the county, if need be.

And by stat. 2 H. 5. c. 8., § 2., The king's liege people, being sufficient to travel, shall be assistants to them, upon reasonable warning, to ride with them in aid to resist such riots, routs, and as

cuse.

He is bound to all that can be required of a man of ordin ary firmness.

Magistrate's

duty in case of

riot.

Honest inten

tion, or that he

followed advice, no defence.

Not his duty to head the special

constables.

All the king's subjects bound to assist, when called upon in quelling the

riot.

But magistrate not responsible for not calling out special con

stables, unless required pursuant to 1 & 2

W. 4. c. 41.

Magistrate callmilitary not

ing out the

bound to go with them.

On view or

ation.

semblies, on pain of imprisonment, and to make fine and ransom to the king.

It is said that the justices are not only empowered hereby to credible inform- raise the power of the county to assist them in suppressing a riot, which shall happen within their own view or hearing, but also that they may safely do it upon a credible information given them of a notorious riot happening at a distance, whether there were any such riot in truth or not; for it may be dangerous for them to stay till they can get certain information of the fact: but they seem to be punishable for alarming the country in this manner, without such probable ground for their proceeding as would induce a reasonable man to think it necessary and convenient. 1 Haw. c. 65. § 22.

Riotous assembly.

May be arrested on fresh pursuit.

13 H. 4. c. 7. B.

Power to record riot, &c. C.

Such record a conviction

not to be traversed.

But not conclusive as to any felony, maim, &c.

Certainty required.

It seems clear from hence, that if the justices, in going towards the place where they have heard that there is a riot shall meet persons coming from thence riotously arrayed, they may arrest them for being assembled together in such an unlawful manner, and also make a record thereof; for the statute extends to all other unlawful assemblies whatsoever as well as to riots. 1 Haw. c. 65. § 22.

The king's liege people.] Except women, clergymen, persons decrepit, and infants under the age of fifteen.

To resist such riots.] And also to arrest the rioters, and conduct them to prison.

And shall arrest them.] 13 H. 4. c. 7. § 1.

And if they shall escape, they may take them on a fresh pursuit; but they cannot at another time award any process against them on the record, but ought to send the record into the king's bench, that process may issue thereon from thence; yet there seems to be no doubt but that they may arrest them for their trespass on the aforesaid stat. 34 Ed. 3., in order to compel them to find sureties for their good behaviour. 1 Haw. c. 65. § 24.

And by stat. 13 H. 4. c. 7. § 1., The same justices and sheriff, or under-sheriff, shall have power to record (B.) that which they shall find so done in their presence against the law; by which record the offenders shall be convict in the same manner and form as is contained in the statute of forcible entries. (C.)

And this they may do, whether the offenders be in custody at the same time, or have escaped. 1 Haw. c. 65. § 24.

And it seemeth to be certain that the record of a riot, expressly mentioned to have happened within the view of the justices by whom it is recorded, is a conviction of so great authority, that it can no way be traversed, however little ground of truth there might be to affirm that any riot at all was committed, or however innocent the parties may be of the fact recorded against them. 1 Haw. c. 65. § 25.

However, it seemeth clear that if, in such a record of a riot, it be contained that the party was guilty therein of a felony, or maim, or rescous, the party shall be concluded thereby as to the riot only, and not as to any of the other matters; because the justices have by this statute a judicial authority over no other offences except riots, routs, and unlawful assemblies. 1 Haw. c. 65. § 26.

And inasmuch as such a final record is a conviction of the parties, as to all such matters as are properly contained in it,