comitatus, may at once put down all riotous meetings. (See Chap. XI.)* A special Riot Act was first granted under Mary. This was thought a necessary security in that sanguinary reign; at first it was made only for a year, and was afterwards continued for that queen's life. By 1 Eliz. c. 16, it was revived for her life also, and then expired. In the first year of George I. it was renewed and made perpetual with large additions. It provides that if any persons, to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, and being required or commanded by a justice of the peace, sheriff, mayor, or other officer, by proclamation in the king's name, to disperse, shall remain or continue together for one hour, such continuing together shall be adjudged felony, and the offender shall suffer death. Whosoever shall pull down chapels and houses before the reading of the respective proclamation, or shall prevent the justices of the peace from reading the same, or, whenever any twelve persons, one hour after such reading has been prevented, are assembled for any unlawful purpose, the same shall be guilty of felony. The military authorities can only be called in against rioters at the instance of the civil authorities, both being liable to severe punishment if recourse had been had to arms by the military without observance of the prescribed legal formalities. *Bl. iv. 148. CHAPTER XIII. THE RIGHT OF RESISTANCE. Magna Charta Sanctions Legal Insurrection.-Passive Obedience.—The Bill of Rights Sanctions the Right of Resistance. "DIVINE right and passive obedience are the most slavish and horrible of all doctrines," says Blackstone. Englishmen regard the right of resistance against unlawful authority as a fundamental principle of law. Legal insurrection was, for a long period, the only protective measure against the arbitrary acts of the sovereigns, especially of the Tudors. In Magna Charta it is expressly laid down that the conservators thereof (the twenty-five barons), "together with the community of the whole kingdom (cum commune totius terra) may distrain and oppress us (the king) in all possible ways, viz., by seizing our castles, lands, possessions, and in any other way they can, till the grievance is redressed according to their good pleasure, saving harmless our person, and the persons of our queen and our children, and when it is redressed they shall obey us as before." This clause further empowers the assembled people to oppose resistance when the feudal lord has infringed the protection, yet with due observance of prescribed legal forms. The right of private war on the part of individual vassals against their superior lord is henceforth excluded; it is the community alone which may stand forth to protect its rights.* When the Stuarts strove to transmute the doctrine of lawful resistance into that of passive obedience, the theory of Magna Charta was legalized anew by 1 William and Mary, s. 2, c. 2, whereby the constitutional theory of resistance was developed, and is thus commented on by Blackstone:-" If these rights are actually violated or infringed, the English subjects are justified in defending them, and indeed to require, first of all, a regular government and a free administration of justice in the courts of * Gneist, i. 39. law; next, to present to the king and parliament petitions for the removal of the difficulty; and finally, to have and employ arms for its own security and defence." This theory, however, is in direct antagonism with the unrestricted authority of parliament. According to the point of view adopted, it is regarded as lawful or otherwise, to resort to resistance against parliament and its arbitrary power. The Tories are most inclined to sanction resistance to parliament; from this point of view do many Conservatives regard the resistance of the Americans against the mother country. Though George III. was the moving spirit in all the measures resorted to, he leaned throughout upon the support of parliament. The Americans, therefore, in the first instance merely contended against the parliament,* as Lord North himself acknowledged in the debate on the address (27th November, 1781). "America," he says, "has not withstood the prerogatives of the crown, but only the pretensions of parliament, the war is kindled because they have felt the supremacy of parliament, and wish to maintain the legal functions and privileges thereof.” At the present day Englishmen in general acknowledge that the resistance of the Americans was legitimate, and there is no further controversy as to the fact of the resistance having been directed not less against the parliament than against the crown. Individual resistance against any unlawful act has been repeatedly recognized by the courts as justifiable. In the reign of Queen Anne, a constable had arrested a woman beyond his district, and, consequently, in contravention of law. A certain Tooley, interfering for her protection, assaulted and killed the constable. He was indicted for murder. On the question of fact the jury gave a special verdict in his favour; and in consequence thereof the twelve judges, under the presidency of Lord Chief-Justice Holt, declared, by a majority of seven against five, "that when a person has been arrested by any unlawful authority, this was a sufficient cause for any one, out of compassion, to come to his assistance, all the more * "Whoever will place himself back, and view with a mind unprejudiced by the result, the heroic courage and daring that were requisite in that fragment of population to dare and achieve so mighty an enterprise, must rest satisfied that something better and nobler in spired and sustained the injured in that struggle than visionary projects as to forms of government or accidents of sovereignty. The colonists took up arms against usurpation; their aim was right, their strength the law."-Canada under Successive Administrations. 1814. P. 1. indeed, if the arrest took place under a semblance of legality; that when an attempt on the liberty of the subject was made, this amounted to a challenging of all the subjects of the King of England; that every one was bound to uphold the Habeas Corpus Act and the laws, and that when an official arrested any one in contravention of law, he was violating the Habeas Corpus Act." In consequence of this legal ruling the accused was only found guilty, of "manslaughter," and allowed the benefit of clergy.* * De Lolme, ii. c. 14; Report of Cases argued and debated in the time of Queen Anne. |