case of resistance, to attack, wound, nay, kill those who continue to resist ;-taking care not to commit unnecessary violence, or to abuse the power legally vested in them. Every one is justified in doing what is necessary for the faithful discharge of the duties annexed to his office, although he is doubly culpable if he wantonly commits an illegal act under the color or pretext of law. The persons who assisted in the suppression of these tumults are to be considered mere private individuals, acting as duty required. My Lords, we have not been living under martial law, but under that law which it has long been my sacred function to administer. For any violation of that law, the offenders are amenable to our ordinary courts of justice, and may be tried before a jury of their countrymen. Supposing a soldier, or any other military person, who acted in the course of the late riots, had exceeded the powers with which he was invested, I have not a single doubt that he may be punished, not by a court-martial, but upon an indictment to be found by the grand inquest of the City of London or the County of Middlesex, and disposed of before the ermined judges sitting in Justice Hall at the Old Bailey. Consequently, the idea is false that we are living under a military government, or that, since the commencement of the riots, any part of the laws or of the constitution has been suspended or dispensed with. I believe that much mischief has arisen from a misconception of the Riot Act, which enacts that, after proclamation made that persons present at a riotous assembly shall depart to their homes, those who remain there above an hour afterwards shall be guilty of felony, and liable to suffer death. From this it has been imagined that the military cannot act, whatever crimes may be committed in their sight, till an hour after such a proclamation has been made, or, as it is termed, the Riot Act is read.' But the Riot Act only introduces a new offense-remaining an hour after the proclamation-without qualifying any pre-existing law, or abridging the means which before existed for preventing or punishing crimes.

"I am fully persuaded that none of your Lordships will think that the as of violence lately directed against y elf can intence my exposition of the w, or an

1780.]

aiter my principles. Although it so happened that I never once spoke in this House in support of the obnoxious bill to mitigate Roman Catholic penalties, and, as far as I recollect, I was not present when it passed through any of its stages, I approved, and I approve, of its principle. My desire to disturb no man for conscience' sake is pretty well known, and I hope will be had in remembrance. I have no leaning to Roman Catholics. Many of those who are supposed to have directed the late mobs are not ignorant of my general tolerating principles when the toleration of sectaries. does not portend danger to the state. I have shown equal favor to dissenters from the established Church of all denominations; and, in particular, those called Methodists can bear witness that I have always reprobated attempts to molest them in the celebration of their religious worship as unworthy of the apostolical protestantism which we profess; the purity of whose doctrines, and not persecution, should be the only incentive to bring proselytes into her bosom. I was, and am, of the same opinion with respect to the Roman Catholics; and, although I had no hand, directly or indirectly, in the law which has furnished a pretext for the late dangerous insurrections, I shall ever be of opinion that they, in common with the rest of his Majesty's subjects, should be allowed every possible indulgence consistent with the safety of the empire.

"Upon the whole, my Lords, while I deeply lament the cause which rendered it indispensably necessary to call out the military, and to order them to act in the suppression of the late disturbances, I am clearly of opinion that no steps have been taken for that purpose which were not strictly legal, as well as fully justifiable in point of policy. Certainly, the civil power, whether through native imbecility [a smile], through neglect, or the very formidable force they would have had to contend with, were unequal to the task of putting an end to the insurrection. When the rabble had augmented their numbers by breaking open the prisons and setting the felons at liberty, they had become too formidable to be opposed by the staff of a constable. If the military had not acted at last, none of your Lordships can hesi

tate to agree with me that the conflagrations would have spread over the whole capital; and, in a few hours, it would have been a heap of rubbish. The King's extraordinary prerogative to proclaim martial law (whatever that may be) is clearly out of the question. His Majesty, and those who have advised him (I repeat it), have acted in strict conformity to the common law. The military have been called in-and very wisely called innot as soldiers, but as citizens. No matter whether their coats be red or brown, they were employed, not to subvert, but to preserve, the laws and constitution which we all prize so highly.'

Lord Mansfield sat down in the midst of a reverential silence more flattering to him than the loudest cheers, and the address was immediately carried nemine dissentiente.

Bishop Newton, who was present, says, "It was really wonderful, after such a shock as he had received, that he could so soon recollect himself, and so far summon up his faculties as to make one of the finest speeches ever heard in parliament, to justify the legality of the late proceedings on the part of the Government, to demonstrate that no royal prerogative had been exerted, no martial law had been exercised, nothing had been done but what every man, civil or military, had a right to do in the like cases."

Lord Mansfield was soon after placed in a very delicate situation, which required both caution and firmness; he had to preside in the Court of King's Bench at the trial of Lord George Gordon, who stood charged with high treason. It was a high compliment to the known impartiality of English judges, that neither the prisoner himself, nor his counsel nor his friends, were at all alarmed at his fate being placed in the hands of one who had suffered so deeply from the consequences of the acts to be investigated, and who had already pronounced a strong opinion upon the character of those acts. During the whole proceeding, Lord Mansfield showed himself free from the slightest tinge of resentment or prejudice; but, at the same time, he made no parade of generosity of feeling.

121 Parl. Hist. 688-695.

9 Bishop Newton's Memoirs.

There could be no doubt that the acts of the insurgents, during the last days of the riots, did amount to high treason but the grand question was, how far the prisoner was to be considered privy to them, for although he had headed the procession to present the petition, and had then been guilty of great intemperance of language by which the mob were excited to violence, he had afterwards attempted to control them, and had actually offered to assist the sheriffs in restoring tranquillity.

Luckily for him, he was defended by an advocate who on this occasion first gave full proof of those wonderful powers which afterwards rendered his name so illustrious. It had been said that Lord Mansfield resembled Cicero in having had his house burnt down by the "modern Clodius." Thus Erskine turned to the advantage of his client an incident which seemed so peril

ous:

"Can any man living believe that Lord George Gordon could possibly have excited the mob to destroy the house of that great and venerable magistrate, who has presided so long in this high tribunal that the oldest of us do not remember him with any other impression than the awful form and figure of justice,-a magistrate who had always been the friend of the Protestant Dissenters against the ill-timed jealousies of the Establishment,— his countryman too,-and, without adverting to the partiality, not unjustly, imputed to men of that country, a man of whom any country might be proud? No, gentlemen, it is not credible that a man of noble birth and liberal education (unless agitated by the most implacable personal resentment, which is not imputed to the prisoner) could possibly consent to this burning of the house of Lord Mansfield.'

The Chief Justice again laid down the doctrine that an insurrection to redress a general grievance, or to compel the repeal of a law, is a levying of war and high treason, whether the grievance be real or imaginary, whether the law be good or bad; and he fairly left two questions to the jury: 1st, Did the insurgents intend by force to compel the repeal of the statute passed to mitigate the penalties to which Roman Catholics were sub

ject?-and 2dly, Did the evidence clearly prove that Lord George Gordon had participated in this intent by calling such an assemblage to present the petition of the Protestant Association, by meeting them in St. George's Fields, by leading them to the House of Commons, by addressing them when they were in possession of the lobby, by wearing for two days the blue cockade, which was the badge of the insurgents, or by any other part of his conduct? With perfect candor he likewise pointed out the circumstances favorable to the prisoner; and he advised the jury, if they thought the scale hung doubtful, to lean to the side of mercy.

It is well known that Lord George Gordon was acquitted; and certainly to have convicted him upon acts so indirectly tending to a levying of war, or compassing the King's death, would have been establishing a very dangerous precedent of constructive treason."