It is the duty of a magistrate at the time of a riot to assemble subjects of the realm, whether civil or military, for the purpose of quelling the riot. In this duty he is aided by the common law, and a statute of 1414 (Henry V.), under which all subjects of the realm are bound to assist on reasonable warning, and by various enactments enabling the authorities to call out the forces for the suppression of riot, and to close public-houses where a riot is apprehended. It is his duty to keep the peace; if the peace be broken, honesty of intention will not avail him if he has been guilty of neglect of duty. The question is whether he did all that he knew was in his power and which could be expected from a man of ordinary prudence, firmness and activity. The law as thus stated is gathered from the opinions of the judges on the trials of the lord mayor of London and the mayor of Bristol on indict ments for neglect of duty at the time of the Gordon riots of 178o and the Bristol riots in 1831.
A matter of interest is the extent of the protection afforded at common law and by the Riot Act to soldiers and others acting under the commands of their officers, and in this regard it must always be borne in mind that "a soldier for the purpose of estab lishing civil order is only a citizen armed in a particular manner." The question was dealt with by Lord Bowen and his fellow-com missioners in the report on the Featherstone riots (Parl. Paper, 1893-1894, c. 7234). The substance of their views is as follows:— By the law of England every one is bound to aid in the sup pression of riotous assemblages. The degree of force, however, which may be lawfully employed in their suppression depends on the nature of each riot, for the force used must always be moderated 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 vari ous 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 disobedi ence to the provisions of the Riot Act, and who resist the attempt to disperse or apprehend them. The necessary prevention of such outrage on person or property justifies the guardians of the peace in the employment against a crowd of even deadly weapons.
Officers and soldiers are under no special privileges and subject to no special responsibilities as regards the principle of the law. The whole action of the military if once called in, ought from first to last to be based on the principle of doing, and doing without fear, only that which is absolutely necessary to prevent serious crime, and of exercising care and skill with regard to what is done. No set of rules exists which governs every instance or de fines beforehand any contingency that may arise. The presence of a magistrate is not essential, but is usual, and of the highest value to aid the commander of the troops by local knowledge. But his presence or absence has no legal effect on the duties or re sponsibilities of the military to use their arms when it becomes necessary to do so, and without recklessness or negligence and with reasonable care and caution ; and where they have so acted the killing of a rioter is justifiable homicide, and the killing of an innocent bystander is homicide by misadventure. It is not usual to resort to extremities with rioters until after reading the proclamation under the Riot Act (1714), but this preliminary is by no means a condition precedent to the exercise of the common law powers of suppressing riots.
It was decided in Reg. v. Glamorganshire County Council, ex parte Miller (1899 2 Q•B• 536) that there is no duty upon the county council to pay out of the county funds the expenses of the maintenance of troops which have upon the application of the county justices been brought into the county for the purpose of preserving peace and order in the county.
Until 1886 persons whose property was damaged by riot had a civil remedy of an exceptional character by action against the hundred in which the riot took place. But the old statutes were repealed and replaced by the Riot Damage Act 1886. Under this act compensation is payable where rioters have injured or de stroyed houses, shops, buildings, fixed or movable machinery and appliances prepared or used for or in connection with manufac tures or agriculture, or for mines or quarries, or have injured, stolen, or destroyed property in houses, shops or buildings. The compensation is payable out of the police rate for the district in which the damage is done. The remedy is available in the case of stranded ships plundered by rioters (s. 515 of the Merchant Ship ping Act 1894). (X.; W. DE B. H.) United States.—Most States have enacted statutes which, though conforming generally to the outlines of the English law, have nevertheless common differences. See 94 Am. Dec. 36 et seq. In a few States only two people are required. Ga. Penal Code, 1926, sec. 36o; Calif. Penal Code, 1923, sec. 404. Some States require that the acts committed be independently unlawful Page, Ann. Ohio Code, 1926, sec. 12,809. In many others inde pendent illegality is not essential. Cahill's Ill. Rev. Sta. 1927, ch.
38, sec. 518. There is a tendency to abolish the distinction be tween unlawful assembly, rout and riot by requiring merely threats of, or assembly with intent to do, such acts. Comp. Sts. Neb., 1922, sec. 9,744; Calif. Penal Code, loc. cit. supra. Reading of the riot act is still frequently a condition. Conn. Rev. Sts., 1918, sec. 6,336. As an additional deterrent, many statutes hold municipalities responsible to those injured by mobs or riots. Gen. Mun. Law, N.Y., Dec. 71. Diligence of municipal officers is no defence. Arnold v. City of Centralia (1915), 197 Ill. App. 73, 13 A.L.R. 765. The punishment for riot is generally com paratively mild. Burns Ann. Ind. Sts., 1926, sec. 2,529 (maximum fine of $500 and/or imprisonment for maximum of three months).
Although the courts, in interpreting these statutes, still require that there be "concert of action," a defendant, who was one of the crowd, may be convicted even though he committed none of the prohibited acts. The burden of proving no participation is on him. Commonwealth v. Merrick (1917), 65 Pa. Super. 482. Concert of action will be "implied" from the facts. Common wealth V. Frishman (1920), 235 Mass. 449, 126 N.E. 838. Similarly, "common intent," also said to be essential, is not necessarily lacking because of a failure to prove a previously existing specific agreement. It also will be "implied." Grier v. State (1912), II Ga. App. 767, 76 S.E. 7o. To hold otherwise in any or all of these instances would make it extremely difficult to convict. The courts, for practical purposes, consider the ob jective realities, apply their own gauge of social desirability in a particular case, and then by the useful tool of "inference" find the elements previously said to be necessary. (L. A. Tu.)