they unlawfully and tumultuously assembled, with others, to the disturbance of the public peace and against the peace of the Queen. Before they can be convicted it must be shewn that this offence has been committed. There is no doubt that they, and with them others, assembled together in great numbers; but such an assembly to be unlawful must be tumultuous and against the peace. As far as these appellants are concerned, there was nothing in their conduct when they were assembled together which was either tumultuous or against the peace. But it is said that the conduct pursued by them on this occasion was such as, on several previous occasions, had produced riots and disturbance of the peace and terror to the inhabitants; and that the appellants, knowing when they assembled together that such consequences would again arise, are liable to this charge.

Now I entirely concede that every one must be taken to intend the natural consequences of his own acts, and it is clear to me that if this disturbance of the peace was the natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over. But the evidence set forth in the case does not support this contention; on the contrary, it shews that the disturbances were caused by other people antagonistic to the appellants, and that no acts of violence were committed by them....

What has happened here is that an unlawful organization has assumed to itself the right to prevent the appellants and others from lawfully assembling together; and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act, if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition. The question of the justices whether the facts stated in the case constituted the offence charged in the information must therefore be answered in the negative.

Judgment for the appellants.

[Magistrate's power of suppressing unlawful assemblies.]

REGINA v. NEALE.

WARWICK ASSIZES. 1839.

9 CARRINGTON AND PAYNE 431.

[The defendants were indicted for a riot at Birmingham, which took place on July 4th, 1839. It appeared that previously to July 4th meetings had taken place at Birmingham which caused such alarm that

some of the shops were closed; as the police force at Birmingham amounted to only 28 persons, and some of these were decrepit old

men.

On July 4th a large and tumultuous meeting was held in the Bull-ring. Dr Booth, a magistrate, having obtained the attendance of 60 London policemen, proceeded to the Bull-ring and desired the mob to disperse. On a refusal, he directed the police to disperse the assembly and apprehend the leaders. A conflict took place, in which several of the police were wounded; and it was found necessary to read the Riot Act and send for the military.]

Miller, for the defence....It is not because large numbers are assembled that a meeting is illegal....Not a single inhabitant has been called to state that this meeting was conducting itself in a manner calculated to produce the slightest alarm; and what right has any magistrate to tell people in a public area in a town to disperse? And unless he has a right to do so, if he let loose a body of constables upon them, and the people resist in consequence of being assailed, they are justified by law; and the rioters are the men who are set upon them, and not those who are assailed. If the police or the magistrates had no authority to assail the people, and a riot ensued afterwards, the people were justified in repelling the assault, and were not guilty of any offence.

LITTLEDALE, J., in summing up, said :-...There was an assembly of persons; but up to the time that Dr Booth went in among them, I do not find that any riot had taken place on that day. It is, however, another question whether there had been an unlawful assembly; because if there was a meeting attended with circumstances calculated to excite alarm, that is an unlawful assembly. And whether there be an unlawful assembly, may also depend on the resistance made to the attempts to disperse it and prevent the persons remaining together. And it is not only in the power of magistrates, it is not only lawful for magistrates, to disperse any such meeting, but if they do not, and are guilty of criminal negligence in not putting down any unlawful assembly, they are liable to be prosecuted for a breach of their duty. The first question in the present case is, whether this meeting, constituted as it was before Dr Booth and the police made their appearance, was an unlawful assembly; if it was, then the magistrates had a right to disperse it. The modes of dispersing an unlawful assembly may be very different, according to the circumstances attending it. It might be an unlawful assembly in a very slight degree, parties might have got just within the pale of what is unlawful, and the appearance of one magistrate and two or three

constables might disperse them. If this assembly were of that description, there was no pretence for a magistrate's going with a great police force to disperse the persons assembled. But all these cases admit of a variety of shades; because an assembly may be such that though, up to the time the magistrate goes to it, there may be no breach of the peace, yet it may be so far verging towards a riot, that it may be the bounden duty of the magistrates to take immediate steps to disperse the assembly. If it was a slight matter, a magistrate going with two or three constables would oblige the people to go away at once. But if he were to go to a large and tumultuous meeting with only two or three constables, it would be absurd, and he would only be laughed at; and there may be cases where a magistrate would be bound to use force to disperse the assembly. All these different cases must depend on their own circumstances; and you would have to say in each whether, under the particular circumstances, the magistrates were justified in resorting to the means they did. If the meeting about which we are now inquiring was an unlawful assembly, it was the duty of the magistrate to disperse it; and you will then have to consider whether the magistrates used more violent means than were necessary to disperse the assembly. They are to use all lawful means, and you must say whether or not they did more.

The jury found all the defendants guilty'.

[Magistrate's duty of suppressing them.]

REX v.

KENNETT.

KING'S BENCH. 1781.

5 CARRINGTON AND PAYNE 283.

[This was an information filed by the Attorney General against Mr Brackley Kennett for having, when Lord Mayor of London, wilfully omitted to suppress a riot. The riot in question was Lord George Gordon's "No Popery" riot of 1780; which lasted five days, and

1 "A person who is accidentally present as an idle spectator is not necessarily indictable for the offence of unlawful assembly...; but he cannot complain of any act of force which is necessarily and properly used by the constables for the purpose of dispersing that assembly. For by his own voluntary act he put himself into a position of being mistaken for men who are guilty of a breach of law; and he must take the consequences." (Per PARKE, B., in Reg. v. Williams, 6 St. Tr., N. S., 780.)

involved the destruction of £180,000 worth of property. Dickens describes it vividly in Barnaby Rudge. In the ultimate suppression, 210 rioters were killed.]

LORD MANSFIELD, C.J., in summing up to the jury, said:-The common law and several statutes have invested Justices of the Peace with great powers to quell riots, because, if not suppressed, they tend to endanger the constitution of the country. And, as they may assemble all the King's subjects, it is clear they may call in the soldiers, who are subjects, and may act as such; but this should be done with great caution. It is well understood that magistrates may call in the military. It would be a strange doctrine, if, in an insurrection rising to rebellion, every subject had not a power to act, when he possesses the power in a case of a mere breach of the peace. By the Act of the 1st George the First, a particular direction is given to every Justice for his conduct; he is required to read the Act, and the consequences are explained. It is a step in terrorem, and of gentleness; and is not made a necessary step, as he may instantly repel force by force. If the insurgents are not doing any act, the reading of the proclamation operates as notice. There never was a riot without by-standers, who go off on reading the Act....

...This information does not charge any intent of favouring or conniving at the riots, but only a neglect of duty; and every neglect of duty depends upon circumstances. In this case the charge is proved. In law, to say, "I was afraid," is not an excuse for a magistrate; it must be a fear arising from danger, which is reduced to a maxim in law to be such danger as would affect a firm man. In this case the neglect, at first view, is proved. The witnesses have sworn that the defendant used none of the authorities vested in him by law; he did not read the proclamation, or restrain or apprehend the rioters, or give orders to fire, or make any use of the military under his direction. But this does not exclude a defence. The defence here relied on is""Tis true, I did not restrain or apprehend any rioters, nor use the military; but, under all the circumstances, this was not a neglect." It is primâ facie the duty of a magistrate to read the Act; but this duty depends on circumstances; he might be alone, and not able to do it. If he did what a firm and constant man would have done, he must be acquitted. If, rather than apprehend the rioters, his sole care was for himself, this is neglect. The sole question is, under all the circumstances of the case-Has the defendant laid before you the justification of a man of ordinary firmness?

66

Verdict, Guilty.

The defendants were found guilty upon an indictment which charged that they unlawfully did conspire and combine together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves, of and from P. D. and G. D., divers large sums of money of the respective moneys of the said P. D. and G. D., and to cheat and defraud them respectively thereof, to the great damage, &c. And, being now brought up for judgment,

Gurney moved in arrest of judgment, on the ground that the indictment was framed too generally; that the words, "by divers false pretences and subtle means and devices," gave no information to the defendants of the specific charge against which they were to defend themselves; that the overt acts of conspiracy should be stated, or at least so much of them as to shew the corpus delicti or transaction to which the charge was meant to be applied; and that in no instance hitherto had so general a count been supported.

The gist

ABBOTT, C.J. The indictment appears to me sufficient. of the offence is the conspiracy; and although the nature of every offence must be laid with reasonable certainty, so as to apprise the defendant of the charge, yet I think that it is sufficiently done by the present indictment. It is objected that the particular means and devices are not stated. It is, however, possible to conceive that persons might meet together, and might determine and resolve that they would, by some trick and device, cheat and defraud another, without having at that time fixed and settled what the particular means and devices should be. Such a meeting and resolution would nevertheless constitute an offence.

*

HOLROYD, J. I am of the same opinion. The present case differs materially from the case of obtaining money under false pretences. There the false pretences constitute the offence; but here the conspiracy is the offence, and it is quite sufficient to state only the act of