Respublica v. Montgomery

Per cur.

It is the duty of every good citizen to endeavour to suppress a riot; and when he finds a mistaken multitude engaged in treasonable practices, to the subversion of all peace and good order, he is protected by law in coming forward with other well disposed characters, to repel them by force.

Mr. Thomas é contra, on the part of the state. The proofs are here sufficiently clear to warrant an information. Though freedom of speech is secured to us by the constitution, yet we are responsible for an abuse of that liberty. The people may meet and discourse on public measures, and the public mind may thus be illustrated and informed; but if they meet for seditious purposes, of when met, go into seditious resolutions, they are amenable to the law. Credulity itself could not be brought to believe, that the defendant, a justice of the peace, was ignorant of the transactions in the western counties, or of the traitorous insurrections existing there,, so far back as the month of July. The resolves of Pittsburgh, Parkinson’s ferry, and Braddoclc’s fields, had been published; the proclamations of the president of the United States; his mission, and that of the governor of this commonwealth, to the insurgents; the state laws passed on the alarming occasion; and the actual march of the militia, were universally known. Could the defendant be so unconscious of his duty, as not to feel that his oath of office required of him his honest en-deavours to preserve the peace, suppress riots, and prevent the erection of liberty poles, ‘ ‘ the avowed standards of rebellion?” Has he rendered his assistance in support of good order? It is not pretended by his own affidavit, which is silent as to several of the charges adduced against him. If his conduct arose from weak nerves, or an imperious necessity, he would fairly have declared so upon oath; but his expressions shew that his errors were not confined to his head; they reached his heart; and, at the time of the riot, he could not have been considered as even a neutral character. As to issuing his warrants, it more probably arose from a desire to screen the rioters or himself, and deter prosecutions, than a sense of duty and the advancement of public justice. He could not but know, that Mr. Wilson’s efforts were in support of the laws and good government; and though the supposed assaults "happened on the 30th September, yet no prosecutions are originated until the 15th November following. *4221 *By court- We are not now trying the defend-J ant, but examining whether there are reasonable grounds to put him on his trial, and we are unanimously of

opinion that there are such grounds. No one can doubt, that the expressions used to the associate judges of the Common Pleas, were highly criminal. The setting up of a pole at any time, in a tumultous manner, with arms, is a riot; but such as erection, when the army were known to have been on their march in support of the constitution and the laws, could only be attributed to an avowed design of giving aid to the insurgents, and intimidating the executives of government. It is the duty of a justice of the peace to suppress a riot, and if he finds persons riotously assembled, he may not only arrest the offenders and bind them to their good behaviour or imprison them, if they do not offer good bail, but he may authorize others to arrest them by a bare verbal command, without other warrants, i Hawk. 160. The law requires in such cases an active conduct from justices of the peace; and if they had more generally exercised their due powers in the western counties, the insurrection would have been quelled in the beginning, and how much honour as well as expence saved to the United States. It does not appear before us at present that the defendant did his duty, as a conservator of the peace; on the 30th September, and we are compelled to observe, that his delaying to issue warrants until the 15th November, when his mind must necessarily have been informed more fully, as well of the public proceedings as of the transactions in Northumberland on the previous period, wears a very singular appearance. We would not wish to go further, lest we síiould prejudice the defendant on his trial, which we are. desirous of avoiding. The rule for granting an information must- be made absolute.

The defendant entered into a recognizance of 500 dollars, to answer the information.