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According to the authorities on justifiable homicide,
no officer, civil or military, is justified in firing on a
mob and killing a rioter, unless he is satisfied the
riot can be quelled in no other way. Judge Hoar,
in his charge to the Suffolk Grand Jury in 1854 (17
Law Reporter, 168), speaks of this point; he intimates
that so many lives are risked by any discharge of
fire-arms by military, the innocent often suffering
with the guilty, that officers should wait to the last
moment before firing.
To sum up :
no order to fire should ever be given
while the authorities feel that any expedient remains
untried ; and they are so strictly responsible in their
exercise of discretionary power, that they are person
ally liable to indictment for murder if they show
any negligence, or too great zeal.
Now as to the preliminaries to be observed before
firing. In England the Riot Act, or that part em
bracing the proclamation,
must be read as near the
riot as the officers can come with safety, and then, if
the mob does not disperse within one hour, the
military may fire.
This custom has, however, never been generally
adopted in this country.*
* On April 8, 1835, a statute was passed following almost literally the
words of the English Riot Act, the following being a brief abstract of
it:
An Act more effectually to suppress Riots.
CXL, 1835.
SEC. 1. Be it enacted, &c., &c., That if persons to the number of
twelve or more, armed with dangerous weapons, or if persons to the
number of thirty or more, armed or unarmed, shall be riotously, tumul-
tuously, or unlawfully assembled in any city, town, or district in this