The Express.
London, England, 1849-09-15 00:00:00

THE "DOLLY'S-BRAE" CONFLICT.

REFUSAL OF THE MAGISTRATES TO GRANT IN-
FORMATIONS AGAINST THE ORANGEMEN.
On Thursday the little town of Osi4lsmaili= was
the scene of considerable excitemen', owing to the fact that
a large number of persons had been summoned to appear be
fore the petty. swims court on that day, to answer to a
*barge et hewn bum present at an unlawful assemblage on
the 12th of July last. The " unlawful assemblage " in
question was the proceseloa of Oraegemen from which the
unfortunate catastrophe at Ihilly'obrae melted, and of
which so meek has been already said sad written. The
wisher of room who came into Cestlewellan, either as
aommed or mamas, was extremely large, and the interest
which appeared to be felt, in regard to the decision of the
bench was intense.
The magates mustered uncommeoly strong on the m-
esa:on, no less than eleven of them occupying the bench, en
which Walter Biewick, Eq., Q.C., the learned gentleman
to whom the government has entrust. d the conduct of the
investigation, was also seated. It having been intimated as
a son as the court at that Mr. Berwick was in the neighbour-
hood, and that it was his intention to be present, the nun
postponed the opening of the proceed age until his arrival,
watch took plan shortly before twelve o'clock. The follow-
(lnchgaiisrmaant Gofestseelalitughws,"a/Tiqp. Rev.nt: Htb.eFtl, d.R..wWeo.
Aunesley, John Quin, Esq., Roger M Guinness, Bag ,
David Lindsay, Eq., H. H. Johnston, Esq , Rev. G. MP.
Johnston, Captain Tighe, and 8. 2.l.Cance, Req. the resi-
dent magistrate of the district. William Keown, (high
judicial the
t
o
sawbt which,htr most
ben: eyt tea avertrihrfa.esii(Lnelpyiur, a le
present
recollect
e a lutuh:
osod 'Phlta"e t Ine
In
megs o
een he oed .adeeyi fi:
business ri
ebi eedut apartmentb the :asrrved some
murma in
of
carried on.
Mr. Ruthven, of Downpatrick, the crown solicitor,
attended to conduct the business on the part of the prosecu-
tion. Mr. Rea, of Belfast, was also present, to watch the
proceedings on behalf of the next of kin to the parties who
lost their Jives in the conflict. The Orange party were repre-
sented by Mr. Kowa (banner), and Mr. Morris, of Lurgan
(solid tor).
The following parties were first called :—Robert Davison,
Jams Paxton, Wham M`Dowell, Alexander Tremble,
Robert Green, 7ames Davison, and Wiliiam Wright. They
all, with the exception of Paxton and Green answered to
their name, aid the regular proof of service of summons
wee given, in regard to them.
Mr. Ruthven said it became his duty in the first plass to
sell the attention of the court briefly to what was the ow
keowledged law of the country touching tumultuous amen-
Wks. He did this, not with a view of taking up the "AIM
time, nor of making a speech, but rather for the wpm* of
assentiug a principle by which the alter proceedings of that
day and if other days might be guided. The criarge Ia tee
present instance was 'notelet: that of riot, and that of tea-
lawful assembly. The learned gent'. man, at great length,
explained the law of the ease, and cited several authorities to
anew that such an assembly as he would be able to prove
took plus on the 12th July, was decidedly Wesel. It such
should prove to be the opinion of their woiships, it would be
the duty of the court to grant informations against the.
parties who appeared before it, t ven although he would be un-
able to trace any specific act of outrage to the hands of any
uue of them.
Mr. Rea observed, that he appeared to Bet collaterally
with Mr. Ruthven, on behalf of the next of kin of the partite
killed by the proussionists.
Mr. Keuwn formally protested against Mr. Rees inter.
Wench
Mr. Keown then rose, and addressed the bench, in refer-
ence to the point of law, on behalf of the accused. Ile
totally denied the accuracy of tee statement put forth by Kr.
Ituthver, touching the illegality of the assembly, and cited
wriat he conceived to be a just dehuition of tumultuous
aesemblages. He should not fret ceded upon t 3 tree pus on
the attention of the court were it not for the observation of
Mr. Ruthven, to the effect that the assertion of a principle
war contemplated in the decision of the bench. It was not
en illegal assemblage in which his cheats took part in he was
prepared to show. The leaned gentleman went on, at cin.
sidereble lerigth, to quote cases in which dicta had been
given as to the nature and character en illegal gatherings.
Among others, he was proceeding to cite the "Queen V.
O'Coani4l," and others, when—
Mr. Quin (one of the magistrate.) inquired as to whether
or not there was a report of the cue ?
Mr. Known replied tnat he had left the book at home. It
was a cue, however, with which every one was well
acquainted.
Mr. Quin—l, for one, am not.
Mr. Keown—Then all 1 can say is, that you are more
ignorant than must people.
Mr Quin—Perhaps I am so; I am certainly ebliged tie
Mr. Keuwa fur the compliment, but I shell Lot forget my-
self so tar as to do what I might with great justice, retort the
charge of ignorance.
Mr. Rea—Every lawyer should know that the charge
aeainet Mr. O'Counell was fur conspiracy, and not for un-
lawful use nobly ; but I must protest agamst the learned
counsel citing cases nuns his imagination or rec illection when
he has not taken the trouble to bring the reports with him,
and I hope the court will agree with Mr. Quin, and not per-
mit more time to be occupied in this way.
Mr. Keown and Mr. Marna (both with great apparent
I excitement) again protested against Mr. Reis's' right to in-
terfere, and Mr. Rea persisted in asserting it. at the same
time intimating that he was quite ready to argue the ques-
tion as to whether he should be heard or not, at once. It
was not, however, then decided, and Mr. Keown proceeded
with his address, contending fur the perfect right of his
clients to assemble as th. y did, as they had not assembled
for the purpose of breaking the peace, and urgii.g that the
arms which they carried were brought merely tor self de-
fence, and not for any improper or illegal motive.
Mr. Morris, on the part of his clients, suggested that the
granting of informations against the parties would be super-
ROMIG at least, inasmuch as there elated rio danger of their
shrinking from trial. The crown had it in its power to file
informations against them at an time.
Mr. Quin remarked that filing es officio informations
would have two inconveniences with it, it would he a most
unusual course, and it would delay the hearing of the case
till another assizes.
Mr. Known made an offer to the crown prosecutor to the
effect that he would undertake for the appearance of his
clients when called on, and urged that such an undertaking
would answer all the ends contentilated.
Mr. Ruthven refused to take any undertaking of the kind.
Mr. It-a here made some otwervation, and was interrupted
by Ur. Keowa, who reiterated his s:atement to the effect
that the learned gentleman had no right to claim a hearing.
The magistrates consulted together, and Lord Roden put
the question to each of their worships as to whether or not
he should be heard. The meimity were of optui in that he
should act, and his lordship made Mr. Rea an intimation to
that effect.
Mr. Res—Surely your lordship will not decide against my
being heard, until you have listened to what I as say la
support of my right.
Lord Roden—Mr. Rea, the court has already decided it.
Mr. Rea—Than all I an say is, with respect to your lord-
ship, that the practice is different from anything to which I
have been heretofore aetrostomed.
Mr. Berwick having addressed an intimation to Mr. Rea
to the effect that he should yield to the decision of the majo-
rity of the bench,
Mr. Rea said—Oh, then sir, I won't contest tie point
farther. Year opinion shill guide me. I shall take another
opportunity of bringing oat my axe.
James Ponsonby Hill, sub-inspector of police, was then
called. He detailed some of the loading features of the
—ovum which took place on the day of the proowsion,
'Red severs' of those charged as having been

present.
A desultory conversation ensued between the advocates on
the respective sides, and the coact was about to proceed to
the consideration of the question of law as to whether or not
the informations on the case as it stood should be granted
against the accused, when
Mr. Berwick requested to be allowed, before the conetcame
to a decieioa, to offer a remark or two on the law of the case.
He did not intend to take any part in the decision Welt, but,
fr ,ne the courtesy exhibited towards him by the magistrates
on a former occasion, he was confident he would be permitted
to offer a suggestion as to the law of the case upon which the
bench might or might not act as it deemed advisable. It
appeared to him very clearly that, whether the government
did or old not give them any assi,tance, they were bound
Ia
this case to take the informations. The law had been elderly
laid down on both aides. It was a portion of the mamas
law of the land that whoa any number of persona collected
together under such circumstances u to create terror sad
alarm in the minds of her Majtesty's subjects, the assembly_
so constituted became an illegal body. Mr. Bill had stated
the circumstances in evidence with which they were bound
to deal, and that gentleman's statement, in his opinion, was
sufficient to show that the assembly was decidedly illegal in
the sense contemplated. He was actually bound to appeal to
government beforehand for such force as might enable him
to obviate the risk of a bruch of the peace. Wit was •
procession, in his judgment, calculated to create in people's
mind feelings of terror and alarm, and here were the mili.
tory—dragoons, and infway;elid police sent to assist in the
work of keeping the Owe. There was no human being who
would not admit it to be an assembly calculated to create
terror and alarm in the minds of the people. There was
another point in connexion with the law of the case which
appeared to him to have been overlooked by Mr. Ruthiren,
when that gentleman was making his statement Tele was
the tact as proved by Hill, of the known intention of the
parties who formed the procession to go round by a certain
road in returning.
Mr. Hume protested, first, against having it laid down
that the precautions of the authorities to preserve the peace
ocuestituted evidence agst his clime; and, secondly,
against the statement in reference to the intention of the
porde..
Mr. Berwick resumed—Then could be no doubt whatever 1
that to return by a certain way was the intention of the par-
ties in the useably, and further...to resist by fore, of arms
any attempt made to oppose them in carrying out sirh aa
intention. There was se demin of the illegalig of the act
en the pert of 1,
_Mama esnylag themselves a Ile way he
bad described. Lord Reiss Yuman bad peeved before him
that an appliestioa wee um& to iodine them to Übe another
road, and that he bad repied to the offset that he had not
influence with them to befog it about.
Lord Pudan—l addax; ream for doing so to the state-
tient.
Mr. Berwick umeaud—They ware bound to act spry
the 01hour:trans* th:monaasorssistoroiatletc_ *ma nswitraim,;obichd
titithtspwepasepantsdreetL ;
It was a quite sepanta innetiderution which was sought to be
aimed up with ft, mealy, as to whether or not the govern-
ant Irsi mat kultitetiess on the subject it was highly im-
portant ilmt Walk a repreasatauon snout' net fa before the
people in this part of the country. it MOALA Le sang to

have it said, that because government may, on particular
omasioes, refrain from punishing particular otTencet, that all
such offences are committed directly under their sanction.
He threw out this for the consideration of the bench, not with
any desire to dictate to the magistrates, and he had no inten-
tion of acting himself. He had some fourteen years' expe-
rience in the administration of the criminal law in two im-
portant counties, and the result of that experience led Mints
the conclusion, that there engbt not to be the slightest doubt
as to the propriety of taking the Information.. He did mat
say this to prejudice the men in court, who, lot a',l the bench
knew yet, might be innocent; but he repeated that the eik-
&see bad gone to show that the procession had be -0 attended
with eireamstances calculated to create great terror and
alarm in the mind of a very gallant man ; that the parties
had evinced their intention of taking a certain route, and
resistieg with foros If they were opposed; and on these
grounds he thought the application should bs granted.
Mr. Shaw remarked that the accused had been summoned
far a riot.
Mr. Berwick acquiesced in the observation, and proceeded
to state what was the law as regarded riots.
L ,rd Roden wished to offer a few words as to the view
which he took of the ease. He mutably did think, atter
hearing all that had been urged on both sides, and the able
address of Mr. Berwick—after hearing all this he still felt that
the position in which the magistrates were placed was one of
great difficulty. He was extremely anxious to do that which
was just to all paean in the case, and that feeling increased
the difficulty of his position. He could not help ref, rring to
some circumstances connected with the case, and It. believed
there never were men placed in a position of greater hardship
than those now before them, whose liberty was sought to be
taken away from them, and whom they were called upon to
Deed for trial.
Mr. Quin—l beg leave to state I entirely dissect from the
view which Lord Haden is expressing about the hardship of
the case. I think—
Lard Rodeo believed that it would be only decent to allow
him to proceed with his observes lens, and the genilemaa
would have lull opportunity of stating his own views in his
I tars.
Mr. Quin—When I do I shall confine myself to the reed
question.
Lord Roden cntinued—ln the year 1848, when rebellion
was rite in this country, the government was anxious to call
out the spirit of all the iudividuala in the tend who would
show a readiness to put down rebellion. The 12th of July
occurred about the period when disaffecti .nwu at its height,
and every exertion was made by the gentry as well as others
to back the government, and thus show in the best possible
manner the feelings which they cntertsiaed in r. gard to the
rebellion then raging in the country. The Orangemen met
that year under circumstances ex .ctly similar to thine wee
der which they assembled on the last annivers try, and
so far from there being any hindrance to the eels-
bunion of it, any damp upon their pm:tedium or blame
upon those who took part in them they were treated in
Reel a way as would le ad one to say that they were encou-
need in the processions in which they were e: gaged. On the
17. h of March last, there was a inuring of the opposite as
Ribbon party, they met together with aims in their hands,
and und.or circumstances calculated to show they were under
ne dread, they =retail over the country, cr ass d many die-
' trims, end actually fired shots iu his tLerel It .den's] village.
I The government was informed of all this, and yet no word
I had ever been spoken in order to lead the people at large to
believe that their proceedings were contrary to the law of the
land, ter to lead thuee who took part in such pi...messier,. to
know that such participation was an ill, gel act. When the
twelfth came rotted this year, and the p ople took a similar
comae, however, a prosecution was sent eleven, through Mr.
Ruthven, to ask them as magistrates to deprive these men of
their liberty. It era true that Mr. B. reek bad promised
that there should be usothieg beyond a nominal punishment.
Mr. Berwick-1 beg your pardon, my lord, I could pro-
mise nothing of the kind. My only meaning was this, that
if such a cue came before me ,or trial, sal that there ap-
peared nothing more &Reheat them than what has coots out here
in evidei ce to-day, I would not consider them liable to more
than a nomival punishment.
Lord Roden went on to ask whether it must not be re-
gelded sea puhishenent for these men to be coming Lite that
town from their distant homes to trial? Was it no panishount
that they should be put to the (ueue of hiring counsel to
defend them, or finding securities for their eppearance et
the sessises Mould it be supposed that such things were no
punishment ? For his own part, and as a plain men and not
a lawyer, and after hearing a great deal trim both sides he
confess.. d that he telt it his duty as a magistrate to refuse
the application. At the same time he could not help lament-
lug thee the government had seen fit to bring forward such
a charge after her Majesty's visit to this country, which had
put dow n id a greet measure the angry feeling which was
pr. 'waling in thla country. He repeated be could not but
lament that the present prom filing had been instituted.
How, ver, he d.d feel that ender thi se difficulties it was his
duty to act for the best, and pursue what he conceived the
most honest course, and that was to refuse to join in °pl-
uton with Mr. B. rwick. The refusal id the present instance
would not prevent the further couple', nu en of the case ; and
however mir to might do he could ant consent to what he
bs listed would be an act of great injustices—namely, the
granting o' the informations sought. As the chairman of
the court be bed deemed it but proper thus briefly to state
the reasons which led to the decision he had just given.
Rev. Mr. Fuele, moiler of the bench, said he felt it bis
duty as a magistrate when a doubt arose to give the benefit
of it to the party accused. Seeing that there was what he
conceived to be . very grave doubt in the present instance,
be, for one, could not agree to take the information.
Mr. Quin said he could only express the opinion of a
, single memb •r of that bench. He would not attempt to
follow the noble chairman into the very various and varied
mew of matter which he had pre before the court. The only
question non. before them was one purely of law,namely,
whether or not the procession was unlawful ? It had been
stated in evidence that previous to the Let 12th July there
had been apprehension entertained, and that large preesu-
, ti.ns had to toe taken to protect the couwry from riot and
outrage. Had it not been thus treated, the consigner ees
might have been much more fearful than thi y hail
been. It appeared that a collision did actually
take place on tile evening of the day in question, and
that five persons lost their live. Had these people had
distinct intimation that the whole eseemblege was illegal,
es the learned counsel had just put it, the chances are in
favour of the supposition that these people would still
be living. There was evidence that 300 or 400 of these per-
sons we re armed with guns and other weapons, which they
IMO determined to use if opposed. He had no doubt that
such were the lei liege in the breast of ClfTy man who was
present on the occasion. He would go farther, however,
and would say that the leader of the processien, those who
were present at it, and those who lent it their ccuntenance,
were equally gull", and should be equally amenable. His
motion was, that the opinion of a jury should be taken upon
the conduct of the whole of them. He repeated that he
I did not feel at all called upon to notice the various topics
introduced by the chairman.
Tree votes were then taken, and there appeared for taking
the information—Captain Tighe, Messrs. Quin fd`G dinner,
Lindsay end td'Cance ; against—the chairmen (Lord Roden),
Messrs. Anneeley, Fords, Johnston (H. /1.), Johnstone
(Rev. G. M. D.) and Shaw. The information was accord-
ingly refused.
Mr. Rea then rose, and said that as the court had decided
against baring him, without hearing his argument, and
since be had been compelled to—that which every young
lawyer feels such a difficulty in doing—bold his tongue—
(lsughti r)—he had a motion to make. It was this,: That
the chairman should take a record of the decision, mid the
manner in which each magistrate had voted. Mis object
was, that there might exist some authentic record of the
sraneaction, in case of his laying the matter before the autho-
ride s at the Castle, who would, doubtless, if the bench had
gone wrong, be happy to instruct it. He had been lately
successful in obtaining for the Mayor of Belfast some useful
instruetinns from the law officers of the grown, sad he would
not for the world, in such a case as this, that the record in
patios shnuld not be forthcoming.
Lord Roden was obliged to Mr. Rea for his kindnees. (A
laugh.) He ahead take care, however, to keep the record
as requested.
Mr. Rea was afraid that his lordship would look upon him
as too treublesome, butts had always endeavoured, as far as
be could, in the discharge. of his duty, to be courteous to his
lordship even when differing from him resolutely, but he
hoped always rt snectfully.
Lord Roden (smiling)—lndeed, Mr. Res, I won't say any-
thing as to the trouble • you have always been c.,urteous to
nee, and I am satisfied intended always to he so.
Mr. Rea then said that, as has lordship had been so polite,
he would just tresepass on him a little further—(laughter)—
by /Iquening him to sign two summonses which he would
now hand up to the bench. Bosh were directed to Mr. John
Jardin, publican of Retbfriland, and a leader of the Orange-
tm
King,h e
oargrey,e' snitjust
deceased; o f
whosed Pi e t Peter 7tdhKing,abows
,t bthey of that
ehoa
tdh Ih a geb
ec:haeuet: court.
the a m.
firedaC tay.noi
suit
notatu brotherinssomnhdontnow s ardut ri e k
wrecked.:otf
The charge against Mr. Jardin was, that on the 12th of
July be was one of en unlawful assemblage of evil-diapowd
persons, by whem Patrick King was murdered, and -Scud's
boom wrecked.
Lord Roden (after reading the summonses carefully)—
Don't these contain almost the same charge we have deeMed
upon ? Wh should there be another trial next petty ses-
sions day ? Would it not he better to have done with the
case and allow a good feeling to grow up among the people ?
Mr. Res—Your Lordship cannot be possibly more anxious
to unite the two sections of the Irish people than I am. I
have made every effort to do so; and shall continue so to est.
But whatever m own private feelings, I must do my duty
to my clients, who have instructed me to have certain per-
sons returned for trial to the assizes, there to gnawer for
the r conduct, on the 12th of July, before a jury of the
county.
Mr. Shaw—We have already refused to return them for
trial.
Mr. Rea—l know you have upon a ease made by Mr.
ntdnounutctdthsoumveco:yitheliethdthinenatarec eisign"mtatitheydeeTcal.orsagEothi Atlellemencrolexicannwcu°,saue; 7ybaurniatea,edlyt hhlfkaodtrwntiirad °I
.don;
wwioraillinotphal vewaalnnyotobtaajecgatoelanninythspaiectl
me to Dowspatrick
the evidence according to my own plan which will be
you eithreamsragbudist.trwairjrobehorri.:l:edbeyseftenurred
amouseredwicleaulinr Cast. lewellen) said he woulisign
hrisesiocesSeciabtao,lwreiggaryr.angeneent, has to he 11,4Prtild 011 th• next
sommthreacaßerhuheethrti:ndiff.erent I may say
ed Iron that accepted to-day by
(whoease against the OrsageoMo, it would appear
to. n bpyliitht.. 7

Aims GntvzTAAos CLOSER,T—Last night, inooll
orgasms of a couususisealoa iron the Secretary of Stow.
abort. Ashby and Chili, the churchwardens of the exten-
sive relish of Bt. Attila. Westatiamer, rawly. it to eons the
graveyards, three in naraer, within that parish against all
More internal* as and after this day, the 15th et,