THE BRISTOL RIOTS. CHARGE OF TINDAL, C.J., TO THE GRAND JURY AT BRISTOL. OPENING OF THE SPECIAL COMMISSION AT BRISTOL ON JANUARY 2, 1832. CHARGE TO THE GRAND JURY BY TINDAL, C.J. (Reported in 5 C. & P. 254.) By Tindal, C.J. in his charge to the Grand Jury It is the duty of every person to suppress a riot by every means in his power. In this respect there is no distinction between the soldier and the private individual. Every sheriff, magistrate, constable, and peace officer has authority to command every other subject of the Crown to assist him in the undertaking, and every man is bound, when called upon, to obey the call. Under 7 & 8 Geo. 4. c. 30. s. 8 (now 24 & 25 Vict. c. 97. s. 11), a person taking part in a riotous assembly at the time when the act of demolishing a house begins, comes within the description of the offence, and is liable to punishment although he did not actually assist in the demolition. Under 7 & 8 Geo. 4. c. 30. s. 2 (now 24 & 25 Vict. c. 97. s. 3), it is not necessary to show illwill against the person whose property is destroyed, but the act is malicious in law if it necessarily injures such person and is done wilfully. If a person aiding the civil power in clearing the streets after proclamation made under the Riot Act kills a person by a pistol shot, and if he has discharged the pistol carelessly and negligently, he is guilty of manslaughter, but if he has discharged it in the fair and honest execution of his duty when the mob were resisting, the homicide is not criminal. On the 29th, 30th, and 31st October, 1831, a riot took place at Bristol as hereinafter described. On Monday the 2nd of January 1832 the Special Commission for the trial of prisoners concerned in the riots at Bristol was opened there by TINDAL, C.J., BOSANQUET, J., and TAUNTON, J. TINDAL, C.J., charged the grand jury as follows (a): Gentlemen, we are assembled on the present occasion, by virtue of the Special Commission of His Majesty, for the purpose of inquiring into, hearing, and determining, certain charges of no ordinary stamp and character, founded upon acts of tumultuous outrage, violence, and rapine, which have recently taken place in this city. This proceeding His Majesty, out of his paternal solicitude, has thought fit to institute, rather than to leave the investigation and punishment of such charges to the ordinary course and stated periods of the judicature within this city; for in the case of offences at once so alarming to the public tranquillity, and so dangerous to the property and safety of individuals, it is of the first importance to make it known to all that inquiry and punishment follow close upon the commission of crime, in order that the wicked and illdisposed may be deterred by the dread of the law from engaging in similar enormities, whilst the peaceable and industrious may look up to it with gratitude and affection for the safeguard which it extends over their persons and property. (a) From a printed copy of the charge in the papers of Solicitor of the Treasury, No. 1263. 0 61636. But it forms, perhaps, a still stronger reason for an early trial of these charges, that, where so large a number of persons as that contained in the calendar have been placed in confinement, the speediest means should be adopted to set at large the innocent, whoever they may be, and to restore them to the peaceful and honest exercise of their daily callings. Gentlemen, I am unable, from any information which has been placed before us, to assign the cause or to trace the exact origin of those enormities which you are now called upon to investigate. It appears, however, that a few hours before they were committed a riotous and tumultuary assemblage of the people gathered itself together with an object and for a purpose which no honest man or well-wisher to the laws of his country can sufficiently reprobate-I mean the open and avowed purpose of treating with insult and indignity, if not with personal violence, a gentleman placed in a high judicial station, bearing the authority of his Sovereign in the administration of the criminal law within this city, and during part of the very time engaged in the actual exercise of his judicial functions. (a) Gentlemen, it is to be collected from the depositions which I have seen that the outrages which will form the immediate subject of your inquiry commenced at about the time of dusk, on Saturday evening, the 29th October last, and continued, with short intermission, until four o'clock on the Monday morning, when, after the Riot Act had been read, and the persons assembled, notwithstanding the procla (a) Sir Charles Wetherell, Recorder of Bristol. A mation, had refused for more than an hour | breach of the law, tends to counteract and to disperse themselves, the further pro- destroy this its primary use and object, gress of the riot was arrested, and the yet do general risings and tumultuary tumult entirely suppressed, by the vigour meetings of the people, in a more especial and energy of the military, called in to and particular manner, produce this effect, the aid of the civil magistrate. -not only removing all security, both from the persons and proporty of men, but for the time putting down the law itself, and daring to usurp its place. I purposely abstain from a minute description of the terror occasioned to individuals, and of the outrages which took place in that interval against property, both public and private. Such description would be unnecessary to make you understand the application of the law to the facts as they will appear before you in evidence the chief object which I have now in view; and it would have the unavoidable consequence of depriving you of that calm judgment which it is your duty to bring to the present investigation, where, on the one hand, the safety and well-being of the community, and, on the other, the lives and liberty of the accused, depend so materially upon your decision. It is no part of my duty on the present occasion to consider whether the acts of outrage and rapine which afterwards ensued were caused by the riotous proceedings which occurred at an earlier part of the day; or whether wicked and designing men, taking advantage of the state of excitement in which the people already were, availed themselves of it to effect their own purposes of destruction and plunder. It may, however, be safely concluded that, if the excitement which led to the defiance of the law at the earlier part of the day had never existed, the weightier crimes, subsequently committed by the populace, would not have taken place; and it is precisely for this reason that the law of England hath at all times held in the greatest abhorrence riotous and tumultuary assemblages of the people. No man can foresee at the commencement what course they will take, or what consequences will ensue. Though cases may occur in which the object of such assemblies is at first defined and moderate, they rapidly enlarge their power of mischief; and from the natural effect of the excitement and ferment inseparable from the collection of multitudes in one mass, the original design is quickly lost sight of, and men hurry on to the commission of crimes which, at their first meeting, they never contemplated. The beginning of tumult is like the letting out of water; if not stopped at first, it becomes difficult to do so afterwards; it rises and increases, until it overwhelms the fairest and the most valuable works of man. Gentlemen, it has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property. And although every single act of violence, and each individual The law of England hath, accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences, and for the prompt and effectual suppression of them whenever they arise. And I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose into effect. In the first place, by the Common Law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up from joining the rest; and not only has he the authority, but it is his bounden duty, as a good subject of the King, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evildoers, to keep the peace. Such was the opinion of all the judges of England, in the time of Queen Elizabeth, in a case called "The Case of Armes," (Popham's Rep. 121), although the judges add that it would "be more discreet for every one in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the King, in the doing of it," It would undoubtedly be more advisable so to do; for the presence and authority of the magistrate would restrain the proceeding to such extremities, until the danger was sufficiently immediate, or until some felony was either committed, or could not be prevented without recourse to arms; and at all events, the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed, than any efforts, however well intended, of separated and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumultuous assem bly; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the Common Law. (a) choice or will of the subject, as some have erroneously supposed, to attend or not to the call of the magistrate, as they think proper; but every man is bound, when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost in assisting him to suppress any tumultuous assembly; for in the succeeding reign another statute was passed, which enacts that the King's 66 liege people, being sufficient to travel in the counties where such routs, assemblies, or riots be, shall be assistant to the justices, commissioners, sheriffs, and other officers upon reasonable warning," to ride with them in aid to resist such labourers, tradesmen, servants, and apprentices, And, whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation, and invested with the same authority, to preserve the peace of the King, as any other subject.(b) If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose, when the occasion demands it, without the requisition of the magistrate, so may the other too; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same. Undoubtedly, the same exercise of discretion which requires the private subject to act in subordination to and in aid of the magistrate, rather than upon his own authority, before recourse is had to arms, ought to operate in a still stronger degree with a military force. But where the danger is pressing and immediate, where In later times the course has been for a felony has actually been committed, or cannot otherwise be prevented, and from the magistrate, on occasions of actual the circumstances of the case no opporriot and confusion, to call in the aid of tunity is offered of obtaining a requisition such persons as he thought necessary, from the proper authorities, the military and to swear them as special constables. subjects of the King, like his civil sub- And in order to prevent any doubt, if jects, not only may, but are bound, to doubt could exist, as to his power to comdo their utmost, of their own authority, the statute 1 Geo. 4. c. 37., and since that mand their assistance by way of precaution, to prevent the perpetration of outrage, has been repealed by the still more recent to put down riot and tumult, and to pre-Act of 1 & 2 Will. 4. c. 41., the statute last serve the lives and property of the people. Gentlemen, still further, by the Common Law, not only is each private subject bound to exert himself to the utmost, but every sheriff, constable, and other peace officer is called upon to do all that in them lies for the suppression of riot, and each has authority to command all other subjects of the King to assist them in that undertaking. By an early statute, which is still in force (the 13 Hen. 4. c. 7.), any two justices, together with the sheriff or under-sheriff of the county, shall come with the of the county, if need be, to arrest any rioters, and shall arrest them; and they have power to record that which they see done in their presence against the law, by which record the offenders shall be convicted, and may afterwards be brought to punishment. And here I most distinctly observe that it is not left to the power (a) This passage is cited with approval by Willes, J., in delivering the judgment of the Exchequer Chamber in Philips v. Eyre, L.R. 6 Q.B., p. 15. (b) See 1 St. Tr. N.S. 1176. referred to has invested the magistrate with that power in direct and express terms, when tumult, riot, or felony was only likely to take place, or might reasonably be apprehended. (c) Again, that this call of the magistrate is compulsory, and not left to the choice of the party to obey or not, appears from the express enactment in the latter Act, that, if he disobeys, unless legally exempted, he is liable to the penalties and punishments therein specified.(d) law for the suppression of riots is to be But the most important provision of the found in the statute 1 Geo. 1. st. 2. c. 5., by which it is enacted,— "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, &c, and being required or (a) 2 Hen. 5. st. 1. c. 8. (b) The reference appears to be to Dalton's Country Justice, c. 82. (c) s. 1. (d) 6. 8. See 2 & 8 Will. 4. c. 108. commanded by any one or more justice or justices of the peace, or by the sheriff, &c., by proclamation to be made in the King's name, in the form herein-after directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made), unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, then such continuing together to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony, and the offenders shall suffer death as felons." assemblage which was effecting the destruction of the building. If he formed part of such riotous assembly at the time the act of demolition commenced, or if he wilfully joined such riotous assembly, so as to co-operate with them whilst the act of demolition was going on, and before it was completed, in either case he comes within the description of the offence, and within the penalties imposed by the Act, although he may not have been a person who actually assisted with his own hand in the demolition of the building. But the more numerous class of cases seems to be that which is founded upon the 2nd section of the same statute, by which it is enacted,— "that if any person shall unlawfully and mali Such are the different provisions of the law of England for the putting down of tumultuary meetings; and it is not too much to affirm that, if the means provided by the law are promptly and judiciously set fire to, &c., any house (or other cially enforced by the magistrate, and honestly seconded by the co-operation of his fellow subjects, very few and rare would be the instances in which tumultuous assemblages of the people would be able to hold defiance to the laws. Gentlemen, before I proceed to the consideration of the cases in the calendar, let me impress on the attention of all those who, from idleness, curiosity, or mere thoughtlessness, suffer themselves to form part of a riotous and disorderly meeting, that they subject themselves, unconsciously, to the danger of punishment for crimes which they never contemplated; for where many are collected together in the prosecution of an illegal object, it is often impossible to discriminate between the active and unoffending part of the mob. It requires evidence on the part of the accused, which they may not be able to produce, in order to defend themselves against the charge of participation in the guilt of others. The only safe course for the peaceable and well-disposed, on all occasions of popular tumult, is this; to lend their ready aid to assist the magistrate in suppressing it, or, at all events, forthwith to separate themselves from the others. One class of cases likely to come before you, will be founded upon the statute 7 & 8 Geo. 4. c. 30. s. 8, by which it is enacted, "that if any persons riotously and tumultuously assembled together, to the disturbance of the public peace, shall unlawfully, and with force, demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, &c., any house, stable, coach-house, out-house, warehouse, office, shop, mill, &c., every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon."(a) In cases of this description, you will consider whether the individual charged was one of the persons constituting a riotous (a) See 24 & 25 Vict. c. 97. s. 11. building mentioned above), whether the same or any of them respectively shall then shall be in the possession of the offender, or in that of any defraud any person, every such offender shall other person, with intent thereby to injure or be guilty of felony, and being convicted thereof, shall suffer death as a felon."(a) In this offence you will perceive it is no constituent part of the descriptions in the statute, that the party charged should form one of a tumultuous or riotous assemblage for the disturbance of the public peace; it is an offence that may be committed by a single individual. You will, therefore, in these cases, inquire, first, whether the party set fire to the building himself. In such case, no doubt of his guilt can exist; and if the proof falls short of this, you will then consider whether he was jointly engaged in the prosecution of the same object with those who committed the offence. If, by his word or gesture, he incited others to commit the felony, or if he was so near the spot at the time that he, by his presence, wilfully aided and assisted them in the perpetration of the crime, in either of these cases the felony is complete, without any actual manual share in its commission. And where the statute directs that, to complete the offence, it must have been done with intent to injure or defraud any person, there is no occasion that any malice or ill-will should subsist against the person whose property is so destroyed. It is a malicious act, in contemplation of law, when a man wilfully does that which is illegal, and which, in its necessary consequence, must injure his neighbour. And it is unnecessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him. Nor will it be necessary to prove that the (a) See 24 & 25 Vict. c. 97. s. 3. house which forms the subject of the indictment in any particular case was that which was actually set on fire by the prisoner. It will be sufficient to constitute the offence, if he is shown to have feloniously set on fire another house, from which the flames communicated to the rest. No man can shelter himself from punishment, on the ground that the mischief which he committed was wider in its consequences than he originally intended. Gentlemen, another class of offenders will be that of persons who stand charged with acts of plunder and theft. And these may come before you, either aggravated by the circumstance of violence or threats to the person of the owner, or with the circumstance of breaking into his dwelling-house, or stealing the property thereout when the house was already broken open; in both which cases the offence is considered of a more aggravated nature, and the measure of punishment is consequently more severe. Or the facts may assume the shape of a simple larceny of the goods of another. In all which cases, as in the case of arson before adverted to, all who are present, aiding, assenting, and co-operating in the fact, are, in point of law, principal offenders. The only other observation I would suggest upon the last-mentioned offence is this, that, where property which has been stolen is found in the possession of any person recently after the theft committed, unless circumstances appear to rebut such presumption, he may be presumed guilty of the theft, until he can explain or prove his innocent possession of the property. Upon the subject of a very numerous class of cases relating to the receiving of stolen property with the guilty knowledge that it has been stolen, I hold it to be unnecessary to offer you any observation whatever. made, requiring the rioters to disperse themselves, and after they had continued together for more than an hour from the time of making proclamation. It appears, also, by the testimony of the witnesses, that the pistol was not aimed at the boy, who was unfortunately struck by the ball. The nature, however, of the offence committed by Lewis will not depend so much upon that fact, as upon the circumstances under which the pistol was originally discharged. If the firing of the pistol by Lewis was a rash act, uncalled for by the occasion, or if it was discharged negligently and carelessly, the offence would amount to manslaughter. But if it was discharged in the fair and honest execution of his duty, in endeavouring to disperse the mob, by reason of their resisting; the act of the firing of the pistol was then an act justified by the occasion, under the Riot Act before referred to, and the killing of the boy would then amount to accidental death only, and not to the offence of manslaughter." (a) [The learned Judge referred to the prisoners in custody at the time of the riot who had not been tried by the Recorder.] To return, however, to the principal object of this special Commission, I cannot in conclusion do better than exhort you all to bring to the examination of these various charges and state of mind, on the one hand, unprejudiced, impartial, and dispassionate, on the other, firm and straightforward in the discharge of your duty. So that whilst you watch the evidence with scrupulous care and anxious fidelity, and then only determine that the accusation shall proceed, where the evidence of guilt preponderate; yet, when such preponderancy takes place, you will show the temper of your justice to be at once too pure and too firm to be turned aside by any false notions of lenity from the discharge of your duty in sending the prisoner to take his trial before that jury who is to decide ultimately upon his innocence or guilt. the I There is, however, one case which stands in a different situation from the rest, and to which it may be proper that I should call your particular attention. mean the case of James Crossley Lewis, (a) who is at present at large upon his recognizance, but who stands charged, upon an inquest before the coroner, with the offence of manslaughter, in shooting a boy of the name of Morris. It appears from the depositions before the coroner, that Lewis was acting in aid of the civil authorities, in assisting to clear the streets, after proclamation had been regularly (a) He was acquitted. See below, p. 278n. (a) There is a printed report of the "Trials of persons concerned in the late Riots, before Chief Justice Tindal, Justices Bosanquet and and ended Saturday, January 14, 1832." Bris Taunton, which commenced Monday, January 2, tol, 1832. There is also a report in papers of Solicitor to the Treasury, No. 1263 and Annual Register, 1832, 215. It appears that of the 113 prisoners, 4 were executed, sentences of death were recorded against 26, 1 was sentenced to 14 years' transportation, 6 to 7 years' transportation, 11 to 2 years', 17 to 12 months' imprisonment, 7 to 6 months' imprisonment, 3 to 4 months', 3 to 3 months' imprisonment, 2 to 1 month; no bills were found against 11, and 22 were acquitted. |