AND OTHERS, v. (Watson's case, 32 St. Tr. 19; ib. 756; Thistlewood's case, 33 St. Tr. W. S.O'BRIEN, 709.) If the levying in Ireland be a treason, we have well alleged IN ERROR, a levying war in Ireland against the Queen; the uniform course of precedents and of practice has been in accordance with this view THE QUEEN. of the enactments. It is contended that by the statutes, as they High treason. now stand in this country, the prisoners ought to have had the privileges of the statutes of William and Anne, but they are not entitled to any such. The foundation of Mr. Fitzgerald's argument has been this, that the 36 Geo. 3, regarding the treason of the death of the Queen, is co-extensive with the enactments of Edw. 3. The object of the statute was only to declare such portions of the 25 Edw. 3 as the times particularly required; and as regards the provisions relating to overt acts, the statute of Edw. 3, before the passing of 36 Geo. 3, applied to two classes; it embraced both the acts of compassing and the causing the actual death of the sovereigncases where the consequences of the act would be the causing of the death of the sovereign: (Fost. Cr. L. 194; and ib. 196.) Before the 36 Geo. 3, was passed, the law of treasons stood by construction, as applicable to two classes of offences-such as aimed at the person of the sovereign, and such as by their consequences might imperil his life: (Watson's case, 32 St. Tr. 579.) What the 36 Geo. 3, did, was merely this, to take those acts which were more plainly acts of treason, and declare that the stat. of 25 Edw. 3, D. Lynch's applied to them. The title of the act of 57 Geo. 3, c. 6, is "An argument for Act to make perpetual certain parts of an Act of the Thirty-sixth the crown. Year of His present Majesty, for the Safety and Preservation of His Majesty's Person and Government against Treasonable and Seditious Practices and Attempts, and for the Safety and Preservation of the Person of His Royal Highness the Prince Regent against Treasonable Practices and Attempts." It is a statute applying so much of the treasons declared as shall suffice for the preservation of the person of the sovereign; it was passed to prevent acts against the person of the sovereign, which we know at that time was necessary, and that was plainly the meaning of it. It was referable to acts personally affecting the sovereign; every one of its provisions were directed to that class alone; every one of those acts were treasons by the stat. of Edw. 3, but it is not coextensive with that statute. If this view is right, the whole argument on behalf of the plaintiff in error is demolished, for there is nothing else to give him the benefit of these statutes. Acts had been done to the Prince Regent which made it necessary to extend the provisions of the act to him, to extend the personal protection to him. Does not that show that the Legislature in this case only regarded acts relating to the person of the sovereign, and not acts relating to the majesty of the sovereign? Now the title and preamble of the late act of 11 & 12 Vict. c. 12, are a legislative interpretation of the application of this statute, merely to cases of personal danger to the sovereign; the 36 Geo. 3, only applied to such treasons; it left uncovered a portion of the statute of 25 Edw. 3; leaving other cases to be tried and adjudged upon the IN ERROR, v. D. Lynch's argument for the crown. W.S.O'BRIEN, statute of Edw. 3: when a treason like the present is only conAND OTHERS, structively against the person of the sovereign, it comes under the statute of Edward, and these statutes (of Geo. 3) do not apply. THE QUEEN. But there is another view of the case which, even if it be not plain High treason, on the other grounds which I have submitted, would seem to conclude the question. It cannot be contended that the 36 Geo. 3, c. 7, was more than an English act. The 57 Geo. 3, c. 6, by the 1st section, after enacting certain of the provisions of the previous statute of 36 Geo. 3, c. 6, makes them perpetual, but in the portion of the statute of 36 Geo. 3, mentioned in the 57 Geo. 3, there is no mention of trials; can it, then, be alleged that by the statute of 57 Geo. 3, the statute of 36 Geo. 3 was in that respect extended to Ireland? It is a well understood principle that where a temporary act is extended, it is the first act which forms the enactment, and not the latter; and it is so even where a temporary act has been allowed to expire, and the only effect is as if the first statute had been made perpetual the moment it was passed; for that I cite Dingley v. Moore (Cro. El 1750); R. v. Morgan (2 Str. 1066); Shipman v. Henbest (4 T. R. 109); Dwarris on Statutes, p. 528, last edit. What follows necessarily is, that 57 Geo. 3 has done no more than make 36 Geo. 3 perpetual, as if it had been so made the day it was passed. It cannot be contended that before the 11 Vict. a party could be indicted for offences under the 57 Geo. 3. In Archbold's Cr. L., and the other books, the proceeding is always said to be under the 36 Geo. 3; but the 11 & 12 Vict. c. 12, does not render the 36 Geo. 3 applicable to Ireland. The section says, "Be it declared and enacted, that such of the said recited provisions made perpetual by the said act of the fifty-seventh year of the reign of King George the Third as are not hereby repealed, shall extend to and be in force in that part of the United Kingdom called Ireland.” This declaration is not as in ordinary declaratory acts. The word "declare" is here used not to give operation to the past, but to provide for the future. It purports to declare what shall be the law for the future. A declaratory act is an act declaring what the law was fromt he very commencement of the act thereby referred to. The 2nd section of the 11 & 12 Vict. c. 12, is not a declaration of law antecedently existing. There is nothing in the late act giving the benefit of the statutes of William and Anne to parties indicted in Ireland; and there is nothing unreasonable in the construction for which I contend that the privileges conferred by those acts were not extended to Ireland; there may have been good reasons for it, but it is enough for me, without suggesting any, to submit that they, in fact, have not been extended. The statute of 11 & 12 Vict. speaks of two different things, the 36 Geo. 3, c. 7, and the part of it made perpetual by the 57 Geo. 3, c. 6. If before the passing of the 11 & 12 Vict. the prisoners were not entitled to the benefits of the statutes of William the Third and Anne, they were not now entitled. As to the plea put in, it is, I submit, no plea at all; it is not any plea known or recognized IN ERROR, v. D. Lynch's by the law; it asks the court to give a judgment which they could W.S.O'BRIEN, not give. The judgment prayed is, "that he be not now compelled AND OTHERS, to answer" the indictment. There is no certainty in that: what is to prevent a party, if that judgment be given, being put forward the THE QUEEN. next day and called on to plead, and then the same thing going on? If High treason. this plea is good, a man might never be capable of being tried, because a copy of the indictment is to be given when demanded, and then, if he did not choose to ask for it, he might never be tried at all. It is a matter of practice for the court below, and not the subject of a plea. [CRAMPTON, J.-What Mr. Fitzgerald says is, that the judgment which the court should give would be, that the trial be postponed to a particular day, and that the prisoner be remanded.] Rookwood's case (13 St. Tr. 155), and Cook's case (ib. 330). Is this anomally to appear upon the record: the prisoner is arraigned, and he makes no demand for these matters, and yet pleads that he has not received them? [Fitzgerald.No demand is necessary under the statute of Anne, it is under the statute of Will. 3. MOORE, J.-In England the things specified must be given without any demand.] The things specified by the statute of Anne; but the copy of the indictment must be demanded. [MOORE, J.-They must be given whether the indictment is demanded or not.] It is only a matter of practice. Frost's case (9 C. & P. 129), shows that these things are merely things to be claimed of the court below before trial. By the plea argument for of sanctuary, a certain judgment was demanded, the pleading stood the crown. thus: after a man had abjured and confessed his crime, he prayed to be restored to sanctuary, but if taken, he had to plead sanctuary, and pray to be restored to sanctuary; that is a certain judgment. Suppose not guilty had been pleaded to the first five counts, and the plea in abatement was one admittedly put in, and only capable of being put into the count charging the endangering of the personal safety of the Queen. [MOORE, J.-Your argument is, then, that it is a plea pleaded only to one count.] Yes; that it is too large if pleaded to the whole indictment; it is as if he had said, I won't plead to five good charges, because I have no right to be called on to plead to a sixth. The charges in the counts of an indictment are separate and must every one be answered. In Herries v. Jamieson (5 T. R. 553), the plea was held bad, because it was pleaded to the whole declaration, but it only answered one of the causes of action. [CRAMPTON, J.-The plea here is not a plea to any part of the indictment, but a protest against the whole indictment by the prisoner, that he ought not to be called on to answer any part of it.] R. v. Shakespeare (10 E. 83.) As to the question of the challenge by stat. 10 & 11 Car. 2, c. 9, which has not been referred to, it is only allowed in cases of high and petty treasons to challenge twenty peremptorily. In the 9 Geo. 4, c. 54, s. 8, limiting the number of challenges, there is no restriction as to petty treason. As to the last point which has been argued, the form of the allocutus, I submit it is a IN ERROR, High treason. W.S.O'BRIEN, Correct one, though other forms have been used. In Comyn's AND OTHERS, Digest, tit. Indictment N., " so judgment ought not to be without a demand si quid dicere habeat quare Judicium non, &c.;” that is THE QUEEN. the question why any judgment shall not be passed: (R. v. Geary, 1 Show. 132; R. v. Smith, 3 Salk. 358; 4 Blackst. 375; Sir John Perrott's case, 1 St. Tr. 1326; Southampton's case, 1 St. Tr. 1333.) The very question which was asked in Frost's case (9 C. & P. 129), is, "what have you to say why judgment should not be given against you to die according to law?" But though that may have been a more formal mode, still it is not the whole judgment; for in treason the judgment is not merely of death, it goes further than that; the asking the prisoners is merely saying, if you have anything in the way of pardon or arrest of judgment to say, now is your time. Argument of Whiteside, Q. C. (for W. S. O'Brien), in support of the error asWhiteside, Q.C., signed upon the caption, cited or referred to the following cases for the prisoners and authorities: Leicester v. Haydon (Plowd. 334); 3 Inst. 231; Bacon's Ab. tit. Authority D.; 2 Hawk. P. C. c. 50, s. 3; Reg. v. Hewins (9 C. & P. 789). In the precedents of important cases in the state trials, the words of the omission of which we complain are always found. When it is a commission issued to two or three "and others," it always states that those before whom the indictment was taken have authority to take it: (Chitty's Cr. Law, 180, 191. Read the form of a caption reciting a commission of Oyer and Terminer. Hardy's case, 24 St. Tr. 230; Horne Tooke's case, 20 St. Tr. 651.) So in Frost's case (Gurney's Report, 13); Foster's Cr. Law, 3. Mr. Lynch has argued that the latter words, which show the authority under which the court sat, are immaterial, and that the previous parts show the authority, and that we are to stop short at the word "appointed;" but how are the three learned judges authorized to sit at a special commission directed to three and others? As in the case in Plowden, where seven persons and eight others were authorized to take the indictment, the case of Rex v. Royce (4 Burr. 2073), which has been cited for the crown, is, according to my interpretation, clearly the other way. commission there was thus:-" of whom our said lord the king wills that the said Sir Henry Gould or James Hewat, Esquire, shall be one;" and therefore Lord Mansfield said there could be no objection: so here, if the caption stated that our lady the Queen willed that these three judges should be three of the commissioners to execute this commission, it would be well enough. As to the second ground of error assigned-in cases of high treason there can be no extension beyond the exact letter of the law; "to succour a rebel out of the kingdom is not adhering to the king's enemies:" (3 Coke Inst. 11.) That is put by Coke to show how exact the law regarding treason is: (1 Hawk. P. C. c. 2, ss. 28 and 46.) It is treason to slay the Lord Chancellor or judges in eyre, but it is not treason to slay barons of the Exchequer. There is one class of treasons which is local, the other not; such as compassing the death W.S.O'BRIEN, money, AND OTHERS, IN ERROR, v. THE QUEEN. for the prisoners. of the king; the other class, such as bringing in false slaying the Chancellor, giving aid to enemies: (7 Rep. 23, 31, a.; 1 Hawk. c. 2, s. 87.) In 33 Eliz. it was resolved by all the judges that for a treason done in Ireland the offender may be tried, by the stat. 35 Hen. 8, in England, because the words of the statute High treason. are "all treasons committed out of the realm of England" (3 Coke Inst. 11): and they all resolved that Ireland was out of the realm of England. Therefore, if a man had committed treason in Ireland, he could have been tried in England, because it was out of the realm, and there was a special act of Parliament for that purpose. Now, as to whether levying war is in Ireland treason, nothing can be more clear than the distinction taken in this statute between the realm of England and the land of Ireland. We contend that, under and by virtue of Poyning's Act, the statute of Edw. 3 is to be taken here exactly as it stood, and that the court have no power to alter a letter. The Legislature has not framed any law to make it apply in terms to Ireland. The act of Edw. 3 is to be applied exactly as it stands; the portion of it in force in Ireland is to be applied there, and the portion not in force cannot be applied. It has been argued for the crown that this act of Edw. 3 is to be interpreted as if originally passed in Ireland; but that is not so: levying war in Ireland is not a "levying war within the realm" within the statute of 25 Edw. 3, any more than the im- Argument of porting the false money, mentioned in the act, is an offence Whiteside, Q.C., in Ireland; the offence must be brought within the letter of the statute: (Sheares's case, 27 St. Tr. 255; M'Cann's case, 27 St. Tr. 399; Rex v. Byrne, 28 St. Tr. 805; Oliver Bond's case, 27 St. Tr. 523; R. v. Roche, 28 St. Tr. 753; R. v. Kirman, 31 St. Tr. 543; Doran's case, 28 St. Tr. 1041; Emmet's case, 28 St. Tr. 1097.) There is now no treason at common law, in consequence of the obscurity of the law and the decisions upon it: (4 Blackstone's Commentaries, 76; 3 Inst. 21.) Hale, in 1 P. C. 86, speaks very clearly to the same effect. There is no instance in modern times of any treason by common law. The plain meaning of the statute of Edw. 3 is, that no treasons shall be considered treasons any longer except those mentioned in it. The expression, "this realm," in the indictment, means the United Kingdom; but in the act on which the indictment is founded, the words are "his realm." [CRAMPTON, J. -What would you say is the meaning of "realm ?"] I would say the United Kingdom. [Here the learned counsel read a portion of the indictment and the overt acts.] This charge is founded on the act of 25 Edw. 3, and I submit that it is an offence as much affecting the life of the sovereign now as ever. It is an extraordinary thing to say that endeavouring to destroy the government, &c., can be done without danger to the life of the sovereign. I submit that the same interpretation must be given to the 36 Geo. 3, and to the 11 & 12 Vict., as to the 25 Edw. 3: the crime is in the intent; the overt act is only the means, it is not the crime: (1 2 E 2 |