they see joining them (a). If the parties interfered with resist, Ch. XIII, such force may be used as will compel obedience; but it would be extremely inadvisable to use any such force as would maim or injure the person resisting, unless he himself made an attack inflicting, or at all events calculated to inflict, grievous personal injury on his captor.

32. Proceeding to the case of a riot before the proclamation In case of required by the Riot Act is read, the same observations apply as in the case of an unlawful assembly. After the proclamation has been read and an hour has ela sed, considerable force may, if necessary, be used for the purpose of dispersing the mob. If the mob are committing, or evidently about to commit, some outrage calculated to endanger life or property, then, even before the expiration of the hour after the reading of the proclamation, or even without reading the proclamation at all, force may equally be used. But even then deadly weapons ought not to be employed against the rioters, unless they are armed, or are in a position to inflict grievous injury on the persons endeavouring to disperse them, or are committing, or on the point of committing, some felonious outrage, which can only be stopped by armed force (b).

33. The existence of an armed insurrection would justify the use of In case of any degree of force necessary effectually to meet and cope with the insurrec

insurrection.

tion.

aiding civil

34. Applying the foregoing rules respecting the use of force Application to soldiers, the following ob-ervations occur (c). Soldiers, when of preceding obseracting in aid of the civil power, in no respect differ, in the view vations to of the law, from armed citizens. Their organisation prevents their troops being conveniently employed in using moderate force for the purpose power. of dispersing or apprehending rioters without doing them any injury; and as a general rule any action on their part involves the risk of inflicting death, or, at all events, grievous bodily harm. Soldiers, therefore, should never be required to act except in cases where the riot cannot reasonably be expected to be quelled without resorting to such meaus of repression. These cases are practically confined to riots in which violent crimes, such as murder, house-breaking, or arson, are being committed, or are likely to be committed, and to insurrections in which an intention is clearly shown to attempt by force of arms the overthrow of the government, or the execution of some general political purpose (6).

tary officer.

35. There remains to be considered the question on whom the Division of responsibility of acting rests in the case of the military being em- respousibility ployed in the suppression of disturbances. The primary duty of between preserving public order r sts with the civil power. An officer, magistrates therefore, in all cases where it is practicable, should place himself and mili under the orders of a magistrate. It will be the duty of the magistrate to request the officer "to take action" (d). On the other hand, an officer will not perform his duty who, from fear of responsibility, lies by and allows outrages to be committed which it is in his power to check, merely on the ground that there is no magistrate on the spot to give orders to the military (e). If the officer and magistrate are acting together, the obligation lies on the magistrate to give orders, and an officer would incur con

(a) Hawkins, Bk. 1, ch. Ixv, sec 11.

(b) See Report on the Featherstone Riot (Parl. Pap., 1893-94, C. 7234, p. 10), and below, p. 220, Note.

(c) The duties of the military in aid of the civil power are laid down in the King's Regulations, aras. 948-968.

(d) K.R., paras. 956, 957.

(e) K.R., para. 968; such cases are, however, very exceptional.

Ch. XIII. siderable responsibility by firing without his orders, or refusing to fire in pursuance of his orders. Still, the law of England is that a man obeys an illegal order at his own risk, and circumstances might arise which would justify the officer in firing or not firing, notwithstanding the magistrate might give orders to the contrary (a). The magistrate, also, if he acts with discretion, will necessarily defer in military matters to the opinion of an officer, and if he were to give orders to fire upon rioters, although dissuaded by the officer accompanying him he would, as was said in the case of R. v. Pinney, have great difficulty in defending himself in the event of death occurring, should he be indicted for manslaughter (b).

Opinion of
Sir Charles
Napier.

36. Complaint was made by Sir Charles Napier in his Remarks on Military Law, of the hardship of imposing on an officer the obligation of deciding whether he is or is not justified in ordering his men to act. He contended that an officer ought not to be liable to trial by the ordinary courts of justice for anything he may do in executing the duty imposed on him by the civil magistrate, namely, to quell the riot (c).

The answer is, that an officer has no greater responsibility than a civilian. Mr. Justice Littledale, in the case of R. v. Pinney, says: "Now a person, whether a magistrate or a peace officer, who has "the duty of suppressing a riot, is placed in a very difficult situa"tion, for if by his acts he causes death, he is liable to be indicted "for murder or manslaughter; and if he does not act he is liable "to an indictment or an information for neglect; he is therefore "bound to hit the precise line of his duty, and how difficult "it is to hit that precise line will be matter for your consideration; "but that, difficult as it may be, he is bound to do. Whether a man has sought a public situation, as is often the case of mayors "and magistrates, or whether as a peace officer he has been compelled to take the office that he holds, the same rule applies, and if persons were not compelled to act according to law, there would "be an end of society."

At the same time the law has always made liberal allowance for the difficulties of persons so circumstanced, and persons whose intention is honest and upright, and who act with firmness to the best of their judgment, need seldom fear the results of inquiry into their conduct.

NOTE.

Extract from Report of Committe on Featherstone Riot.

The following summary of the law as to the duties of soldiers in case of riot was given in their Report by the Committee who inquired into the facts of the Featherstone Riots in 1893. The Report gains weight from the fact that the Committee was presided over by Lord Bowen. It will be seen that this statement of the law is in complete accord with the present chapter, on which, indeed, it seems to have been founded:

"By the law of this country every one is bound to aid in the suppression of riotous assemblages. The degree of force, however, which may be used in their suppression

(a) K.R., paris. 957, 958; and Note to this Chap.

(b) See R. v. Pinney, 5 C. & P. 273. "The next thing imputed against the "defendant is that there was a want of energy in his conduct in not ordering the "military to fire upon the rioters. Upon this part of the case it appears that he "was intending to do so, but was dissuaded by Colonel Brereton and also by Major "Mackworth, and if the defendant had given an order to fire upon the rioters, and "death had ensued, he would, upon an indictment for murder or manslaughter, have "had great difficulty to defend himself, if it had appeared that he had given the "order to fire against the advice of two distinguished military officers." As to the liability of subordinates, see ch. VIII, para. 98.

(c) Quoted by Clode, Mil. Forces ii, p. 153.

depends on the nature of each riot, for the force used must always be moderated Ch. XIII. and proportioned to the circumstances of the case and to the end to be attained.

"The taking of life can only be justified by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed, or in the case of persons whose conduct has become felonious through disobedience to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. The riotous crowd at the Ackton Hall Colliery was one whose danger consisted in its manifest design violently to set fire and do serious damage to the colliery property, and in pursuit of that object to assault those upon the colliery premises. It was a crowd accordingly which threatened serious outrage, amounting to felony, to property and persons, and it became the duty of all peaceable subjects to assist in preventing this. The necessary prevention of such outrage on person and property justifies the guardians of the peace in the employment against a riotous crowd of even deadly weapons.

He

"Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law. A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. A soldier can only act by using his arms. The weapons he carries are deadly. They cannot be employed at all without danger to life and limb, and, in these days of improved rifles and perfected ammunition, without some risk of injuring distant and possibly innocent bystanders. To call for assistance against rioters from those who can only interpose under such grave conditions ought, of course, to be the last expe tient of the civil authorities. But when the call for help is made, and a necessity for assistance from the military has arisen, to refuse such assistance is in law a misdemeanor.

"The whole action of the military when once called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which governs every instance or dennes beforehand every contingency that may arise. One salutary practice is that a magistrate should accompany the troops. The presence of a magistrate on such occasions, although not a legal obligation, is a matter of the highest importance. The military come, it may be, from a distance They know nothing, probably, of the locality, or of the special circumstances. They find themselves introduced suddenly on a field of action, and they need the counsel of the local justice, who is presumably familiar with the details of the case. But, although the magistrate's presence is of the highest value and moment, his absence does not alter the duty of the soldier, nor ought it to paralyse his conduct, but only to render him doubly careful as to the proper steps to be taken. No officer is justified by English law in standing by and allowing felonious outrage to be committed merely because of a magistrate's absence.

"The question whether, on any occasion, the moment has come for firing upon a mob of rioters depends, as we have said, on the necessities of the case. Such firing, to be lawful, must, in the case of a riot like the present, be necessary to stop or prevent such serious and violent crime as we have alluded to; and it must be conducted without recklessness or negligence. When the need is clear, the soldier's duty is to fire with all reasonab e caution, so as to produce no further injury than what is absolutely wanted for the purpose of protecting person and property. An order from the magistrate who is present is required by military regulations, and wisdom and discretion are ntirely in favour of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer for declining to fire when the necessity exists.

"With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford a statutory justification for dispersing a felonious assemblage, even at the risk of taking life. In the case of the Ackt n Hall Colliery, an hour had not elapsed after what is popularly called the reading of the Riot Act, before the military fired. No ju-tification for their firing can therefore be rested on the provisions of the Riot Act itself, the further consideration of which may indeed be here dismissed from the case. But the fact that an hour had not expired since its reading did not incapacitate the troops from acting when outrage had to be prevented. All their common law duty as citizens and soldiers remained in full force. The justification of Captain Barker and his men must stand or fall entirely by the common law. Was what they did necessary, and no more than was necessary, to put a stop to or prevent felonious crime? In doing it did they exercise all ordinary skill and caution, so as to do no more harm than could be reasonably avoided?

"If these two conditions are made out, the fact that innocent people have suffered does not involve the troops in legal responsibility. A guilty ringleader who ander such conditions is shot dead, dies by justifiable homicide. An innocent person killed under such conditions, were no negligence has occurred, dies by an accidental death. The legal reason is not that the innocent person has to thank himself for what has happened, for it is conceivable (though not often likely) that he may have been unconscious of any danger and innocent of all imprudence. The reason is that the soldier who fired has done nothing except what was his strict legal duty."-Parl. Pap. 1593-94, C. 7234.

CHAPTER XIV.

THE LAWS AND CUSTOMS OF WAR ON LAND.

NOTE.

What formerly appeared as C apter XIV of this work is now out of date, and owing to important questions of international law being at the present time under consideration at the Hague Conference, it has been thought desirable to defer the rewriting of the chapter till the results of the Conference are available.

Ch. XIV.

I.

THE GENEVA CONVENTION, 1864.

For the Amelioration of the Condition of the Wounded in
Armies in the Field, August 22, 1864.

Article 1.

Les ambulances et les hôpitaux militaires seront reconnus neutres, et, comme tels, protégés et respectés par les belligérants aussi longtemps qu'il s'y trouvera des malades ou des blessés.

La neutralité cesserait si ces ambulances ou ces hôpitaux étaient gardés par une force militaire.

Article 11.

Le personnel des hôpitaux et des ambulances, comprenant l'intendance, les services de santé, d'administration, de transport des blessés, ainsi que les aumôniers, participera au bénéfice de la neutralité lorsqu'il fonctionnera, et tant qu'il restera des blessés à relever ou secourir.

Article 111.

Les personnes désignées dans l'Article précédent pourront, même après l'occupation par l'ennemi, continuer à remplir leurs fonctions dans l'hôpital ou l'ambulance qu'elles desservent, ou se retirer pour rejoindre le corps auquel elles appartiennent.

Dans ces circonstances, lorsque ces personnes cesseront leurs fonctions, elles seront remises aux avant-postes ennemis, par les soins de l'armée occupant.

Article IV.

Le matériel des hôpitaux militaires demeurant soumis aux lois de la guerre, les personnes attachées à ces hôpitaux ne pourront, en se retirant, emporter que les objets qui sont leur propriété particulière.

Daus les mêmes circonstances, au contraire, l'ambulance conservera son matériel.

Article V.

Les habitants du pays qui porteront secours aux blessés seront respectés, et demeureront libres. Les Généraux des Puissances belligérantes auront pour mission de prévenir les habitants de l'appel fait à leur humanité, et de la neutralité qui en sera la conséquence.

Tout blessé recueilli et soigné dans une maison y servira de sauvegarde. L'habitant qui aura recueilli chez lui des blessés sera dispensé du logement des troupes, ainsi que d'une partie des contributions de guerre qui seraient imposées.

Article VI.

Les militaires blessés ou malades seront recueillis et soignés, à quelque nation qu'ils appartiendront.

Les Commandants-en-chef auront la faculté de remettre immédiatement aux avant-postes ennemis, les militaires blessés pendant le combat, lorsque les circonstances le permettront, et du consentement des deux partis.