14, DONAGHMORE INQUIRY COMMISSION, 1S67.
were circumstances proper to be submitted to a jury as evidence of a riot at common law within the above principle.
There is another well established principle of the common law, that every assembly of a great number of persons, which from its general appearance and accompanying circum¬ stances is calculated to excite terror and alarm, or lead to a breach of the peace, is an unlawful assembly.
We think that the assembly described by O'Neill was calculated to excite in the minds of reasonable men well grounded feelings of alarm, and it did lead to a breach of the peace.
In applying these principles of the common law it is at times difficult to draw the line of distinction between a lawful and an unlawful assembly; but even should that difficulty exist it would be more prudent for magistrates not to take upon themselves its solution, but to refer it to a higher tribunal, and that more particularly in cases of a party nature We think that the magistrates were also mistaken in supposing that the defendants in the first summons were not responsible for the riot, because they -were not seen to take any active part in it; this is not the law.
All persons who form part of an assembly of this kind, disregarding its probable consequences, and thereby giving countenance and support to those who are more active, are criminally responsible.
Upon this subject, in his charge to the Grand Jury, on the occasion of the Birkenhead riots, Mr.
Baron Bramwell said— " In cases of riot the rules of good sense and good law are the same.
A man may take part in a riot not merely by being an actual stone-thrower, or shouting, or yelling.
If he be seen marching with them, so that his presence was an aid and encouragement to the more active parties, he is as much a party in a riot as a soldier ia a battle who although he did not fire was there present to be brought up as a reserve."
See p.
15.
We have before stated that while deliberating as to their decision, the Justices referred
to the document headed " Instructions for the Guidance of Magistrates in suppressing Party Processions," and had put upon it a construction not intended by its framers.
We have thought it right to consider and to state as our opinion how far they may have been justified in so doing.
Although the document is not calculated to mislead persons thoroughly acquainted with the principles of the common law, we think that it did mislead the magistrates in this case.
The document is headed—
" Instructions for the Guidance of Magistrates in suppressing Party Processions" a heading which, apparently, comprises all party processions.
It first refers to the Act 13 Vic, c 2, defines all offences falling within its provisions, and instructs magistrates how to act with regard to them.
It then refers to another Act, the 6 & 7 Will, 4, c.
38, sees.
8 and 9, and instructs magistrates how to act in cases falling within the provisions of these sections, and omitting all mention of assemblies illegal at common law, it proceeds: " The Justices of the Peace should understand that it is their bounden duty, within their respective jurisdictions, to act upon the powers thus vested in them by law for the suppression of these illegal proceedings against which the above statutes are directed, and that they will be hold, collectively and individually, responsible for any violation of this law which may occur in their districts of which it shall be found that they have notice, and when it may be found that they have not made use of their authority and means at their disposal to suppress such pro¬ ceedings and bring those concerned to justice."
Upon reading this document, the Justices may, not unnaturally, have inferred that their authority in suppressing party processions and bringing those concerned in them to justice, was confined to processions offending against the provisions of the Acts therein referred to, and that other processions were not illegal.
We have the honour to be
Your Excellency's obedient servants,
CHARLES KELLY.
June 3,1867, CHARLES SHAW.
